Few of us have been unscathed by alcohol, and I am no exception. A close Cherokee relative, big-hearted and kind when sober, was a mean drunk who finally ended his life in a drunken header off a bridge. When my son was 7, I had to tell him a drunken driver had killed his best soccer buddy. Another drunken driver cost me seven months in a hospital and injuries that affect my daily life almost fifty years later.
I am one of the lucky ones who can take booze or leave it, so the only moral issue is that I leave it when with someone I know is not so lucky. Not being a drunk does not make me feel superior, since I know it only means I’ve won a genetic lottery.
State legislatures and tribal councils come under pressure whenever there are particularly gruesome deaths, usually of children. The number of drunken driving deaths per capita by state fluctuates, but most of Indian country stays consistently above the median. We worry over it, and we have good reason to worry.
When I first became a county level judge in Texas, my docket was driven by drunken driving cases. By the time I left, it was driven by domestic violence cases, but alcohol often reared its ugly head there as well.
I came to understand the impulses behind alcohol prohibition, and if prohibition were practically possible I would cheerfully give up the beer that goes with football and the tequila that goes with poker.
It’s not practically possible to ban alcohol, and it’s particularly not possible for reservation communities. Any attempt gets you a highway of death between the rez and the nearest legal booze and a bootlegging class that can sometimes make more money than the tribal cops. This is not unlike what happened to the US, where alcohol prohibition turned the Mafia from a few street thugs confined to immigrant neighborhoods to a wealthy national syndicate.
The criminal justice system cannot fix the alcohol problem with more punishment. A drunk quits when the necessity to quit is imposed by family and friends.
So what about all those drunken driving casualties? How can we minimize the body count? Smartly.
We can manipulate the time more drunks are on the street by mandating closing hours. If closing time is midnight, the roads get more deadly until about 2 am. If the closing time is 2 am, you move the surge of drunk drivers later.
We can manipulate where by controlling the placement of drinking establishments.
Manipulation of time and place makes life easier for the cops, but it does not protect from a drunk at the crack of dawn nowhere near a bar.
You cannot stop drunken drivers by putting them in jail. They are going to get out. I have seen drunken drivers do it again after serious prison sentences. It’s not like they do it on purpose. Part of the pain of a hangover is the self-loathing and the promise to yourself never to do it again…just like last time.
You cannot stop drunken drivers by fining them. If they have the money, they will pay and pay again. If they don’t have the money they can’t pay but they will impoverish their family in the attempt.
You cannot stop drunken drivers by taking away their licenses. They simply keep driving, and a tribal court usually has no jurisdiction to revoke a state license. While a tribe has the power to require a license of reservation residents, the only result of taking it away would be that the tribal cops could stop a repeater on sight and they could get a list of all the residents not allowed to drive.
You cannot stop drunken drivers by requiring ignition interlocks, but you can enrich the companies that make the interlocks.
The state of New Mexico is, as this column is written, considering a bill to ban convicted drunken drivers from buying alcohol. It works so well to keep teenagers from drinking, right?
I used to order people I put on probation for drunken driving to “consume no alcoholic beverages.” This was not because I thought they would not drink, but rather so I could revoke their probation for mere consumption. It’s easier to prove that a person had a drink than to prove she committed the crime of public intoxication while on probation.
Here’s something tribal governments can do that state governments have not had the will to do. Instead of taking away the booze, take away the other property necessary to commit the offense, the vehicle. Starting with the second offense, any vehicle—even if rented or borrowed—is forfeited to the tribe. First offense would be unfair, even though first offenders can kill you just as dead, because no amount of preaching can teach that if you have a buzz on, you’ve had too much to be driving. If a first offense can’t teach you, you’re a hazard.
What about the innocent spouse? Auction the vehicle, pay off the loan, and give the spouse half of what’s left.
What about non-Indian repeat drunken drivers? Tribal courts cannot entertain criminal sanctions of non-Indians generally, but this is a civil forfeiture. Tribal courts can consider prior drunken driving convictions in state courts.
There’s no practical limit to the number of bottles of beer a drunk can acquire. I bet there’s a limit to how many vehicles.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.