Eminent Domain

Well, I'm finally back to full time Eminent Domain duty. I had to take a few days off because classes just started Monday. This is the first time that I've had a chance to sit down, check out the legal news, and do some commenting.

The Attorney General candidates are on the front page of the Milwaukee Journal Sentinel today. The topic is first offense drunk driving. Here in Wisconsin, first offense OWI is an ordinance violation. We are the last state in the country to have that light of a penalty. Some of the candidates want to change that...

Attorney general candidates Paul Bucher and Kathleen Falk favor criminalizing first-time drunken-driving offenses in Wisconsin, the last state where such an offense is only an ordinance violation.

The Republican Bucher and the Democrat Falk also favor giving law enforcement the power to conduct roadside sobriety checkpoints. Wisconsin is one of 11 states prohibiting the checkpoints.

JB Van Hollen opposes both measures. Attorney General Peg Lautenschlager says she has no position and will defer to the legislature on the issue. Gee, I wonder why she would avoid commenting on this...

Interestingly, Marquette Law Professor Michael O'Hear has a post about this issue on PrawfsBlawg, where he is a guest poster. He's skeptical about the criminalization move...

My skepticism stems from the standard reasons that I think should always give us pause before we create new crimes, especially when criminalization is not accompanied by any new commitment of law enforcement resources. More crimes means greater police and prosecutor discretion, which I do not trust to be exercised in an evenhanded manner. Prosecution of new crimes drains resources from the prosecution of old crimes. And when the new crime is a strict liability crime, like DUI, there ought to be particular concerns about directing limited law enforcement resources towards those cases where punishment has the least moral legitimacy.

He also thinks that there is another reason behind this proposed change in policy appearing right now...

Interestingly, if Wisconsin is now on the path to criminalization, the politics don't seem driven by the institutional pathologies that play such an important role in Stuntz's account. Prosecutors are divided in their views of the proposal. My suspicion is that the real reason the issue has emerged in the AG race this year is that the incumbent AG, who is running for reelection, was convicted of DUI two years ago, and her opponents are looking for ways to make the DUI issue more salient.

The primary is approaching fast, and the candidates are looking for ways to set themselves apart. We'll have to see if it actually resonates with the voters.