Bootlegging Inconvenient Truths

Steve Russell

Don’t lecture me about alcohol and in particular about drunk driving, because I can turn incoming admonishments around on a dime.

I’ll take you to 1966, when I was traveling back to Kelly AFB to gather my stuff and head for something called “counter-insurgency training” in preparation for a 13 month vacation in sunny Vietnam. I was driving south on IH 35 while the police were chasing a drunk driver north in the southbound lanes.

I caught him.

I woke up two days later with bloody gauze where my front teeth had been and too many broken bones to count. I was seven months in a USAF hospital; the drunk was dead at the scene.

Then I’ll take you to 1982, when I was about to take my son to play soccer and he wanted me to call and see if his best friend could ride with us. I made the call and learned a drunk driver smacked the truck Gabriel had been riding in and the child wound up under the truck. Passersby manhandled the truck off him but he died at the hospital.

I had known Gabe since he was a bulge in his mom’s tummy and I had no experience explaining death to a 7-year-old. To this day, I can’t separate the pain of losing him from the pain I had to inflict on my son.

Yes, I get it. Drunk driving is not a victimless crime and if you get away with it without doing harm you were blessed by luck.

Around the time we lost Gabe, I was elected judge of a criminal court where the docket was driven by what we in Texas call DWI but most of the country calls DUI.

By the time I left that court—and because of a campaign promise I had made—the docket was driven by domestic violence cases. Alcohol often reared its ugly head in those cases as well, just like in less serious assault cases.

I say “less serious” because I will always consider hitting the mother of your children to be a bigger deal than getting in a bar fight, but we refer to non-family assaults as “bar fights” because alcohol is often a reason why somebody lacked the judgment to avoid settling a difference with fists. Alcohol also often showed up in petty theft cases and virtually all criminal mischief cases.

We had three overloaded courts hearing criminal and civil cases when I was first elected. A few years later, the legislature created three more courts and we, the judges, split them four criminal and two civil.

In connection with apportioning the work, I engaged in a thought experiment. What if all the alcohol related criminal cases went away? It appeared to me that the legislature would only have needed to create one new court and we could have split them two and two between criminal and civil.

I drink. Beer with pizza and ballgames, wine with a good meal, and mixed drinks when socializing. I am partial to fine aged tequila straight up or even neat. Margaritas are fine, but a really fine aged tequila is wasted on a mixed drink.

I can’t even remember the last time I got drunk. I have no problem stopping at two or three, which will not move the dial much on a guy my size.

I understand that my ability to handle alcohol is something I probably won in a genetic lottery, because several people in my family lost that same genetic lottery. I deserve no kudos for being sober. I enjoy drinking just enough to do it but not to do very much of it.

Still, my life experience has led me to grasp the impulses behind alcohol prohibition. Those impulses are deep enough in my bones that I would absolutely vote in favor of prohibiting the sale or consumption of alcoholic beverages if the prohibition did not cause more trouble than the alcohol.

Incidentally, I’ve also had fun firing weapons on full automatic and I agree that assault rifles look very cool and it’s amusing to own one. One of the weapons I’ve fired on full auto was a Thompson submachine gun with a drum magazine—the famous “Tommy Gun” that was the weapon of choice for the gangsters who were empowered and enriched by the U.S. experiment with alcohol prohibition.

The craving for assault rifles—unlike the craving for alcohol—is psychological rather than physical, and so I find it hard to understand why so many people consider their amusement to be worth the substantial downside. I understand that assault rifles are rarely used in homicides, but when they are the results are spectacular.

And don’t get me started on high capacity magazines. Any hunter who needs more than ten rounds to dispatch his prey needs to become a vegetarian or make friends with somebody more competent.

No nation has ever successfully prohibited alcohol. Many nations have successfully prohibited certain guns without significant loss of political freedom.

Maybe Indian nations labor under the delusion that Indians are different from other people—more docile—and so they will accept alcohol prohibition. Maybe there is a reservation somewhere that claims to be dry without bad results.

What bad results?

Stick a pin in the map for every drunk driving fatality over several years. Do the pins show you a pattern?

Do you see Indian drunks in public places, either on your “dry” rez or on the streets of the nearest border town?

Ask the criminal court judges about how many assault cases they get and how many are related to alcohol.

Ask yourself if your children have begun to look at the bootlegger as someone to emulate if you want to make money.

Wander over to Indian Health Service and ask if your service area has a lower than average prevalence of alcohol related diseases.

If you live on a “dry” rez, all I’m asking is, please, make the investigation described above. If it shows alcohol prohibition has worked, good for you and please send me a copy of your results. I’m retired, but I still care about this stuff.

If alcohol prohibition did not work, I have some observations based on hearing these cases for too many years than I care to admit.

Of course, what we want is for the drunk to quit harming himself or herself. The family wants a relative healthy and the judge wants the community safe. Punishment accomplishes neither.

Detox and rehab are expensive and there’s no telling how many times a drunk will cycle though it before they learn to stay dry. It would save money to limit the number of opportunities for detox and rehab but money is not what we are trying to save. Lives are.

Where can we get the money to help people get what is poison for them out of their bodies for good? If your tribe is one of the few rolling in casino cash, you are not asking this question. If you are more normal, then I suggest that the tribal government take over the sale of alcohol on the rez and direct every dime of the profits to detox and rehab until such time as the need goes away.

Won’t that cause more people to drink? Seriously? Do you think people don’t drink because it’s too far to the liquor store?

Won’t the tribal government be legitimizing drunkenness? Do the warning boxes on cigarettes legitimize smoking? You can do any amount of alcohol education you think appropriate, but the big deal is believing your people are smart enough to understand harm reduction as a policy goal.

What about punishment?

If punishment floats your boat, fine, but understand the limitations.

Everybody I put in jail for drunk driving got out. They would be detoxed, usually the hard way, but no less likely to be a practicing drunk. The research I saw back in the day predicted that 80 percent of people with two drunken driving arrests would fit the clinical profile of alcoholics.

Everybody I fined could pay it or lay it, as the wiseacres said, but if losing money could stop drunks from drinking there would never be a second drunk driving case. As one of my colleagues put it, “it’s cheaper to charter a helicopter than to get arrested for drunk driving.” I checked, and he was literally correct. The helo was $350 an hour with a minimum of two hours. In my jurisdiction, you cannot deal with a drunk driving case for $700.

Everybody whose license I took away kept driving.

Those are all the options the law offered me, but I always pined for one more. Suppose I could take away not the license but the vehicle?

Yes, it is lawful. The courts have upheld seizure of a car from which a prostitute was solicited. You don’t need a car for prostitution, but you do for drunk driving.

It’s not fair because the drunk can’t get to work? If the drunk has already burned so many bridges he can’t get a lift, then getting the drunk off the road is a bigger public interest than whether he has a job. I’m not talking about taking a car on first offense.

It’s not fair to the spouse? Have the sheriff sell the vehicle and give the spouse half the money.

It’s not fair to the bank that holds a loan secured by the vehicle? Have the sheriff sell the vehicle and pay the bank first.

Let’s say you don’t think my answers are adequate. That’s your prerogative. If you don’t think I’ve got the numbers right or you think I’m wrong to prioritize getting drunks sober and, if that’s not possible, confiscate any car they are caught driving, fine—but your opinion of me does not solve our problem.

I’m going to wait for somebody to send me numbers that show alcohol prohibition on a reservation diminishes drunken driving and the other problems that go with alcohol. Should that happen, I’d write about the success.

Where did alcohol prohibition on the rez come from in the first place if it does no good?

First, from the same understandable impulses that drove the Eighteenth Amendment to the U.S. Constitution, resulting in the elevation of organized crime to big business. Having had my nose rubbed in the downside of alcohol, I would favor prohibition myself if it had not been shown repeatedly to do more harm than the alcohol.

Second, from the tendency of tribal governments to ape the feds. Providing alcohol to Indians was against a bunch of policies and sometimes laws from first contact right though the reservation years.

There were various kinds of alcoholic beverages in the Americas before Europeans, but as far as I’ve been able to discover, they were all fermented rather than distilled. It’s hard to picture what good could come from the sudden introduction of the latter and we know how it was used against us.

Now we use it against ourselves when we shun using the money alcohol generates to address the medical problems and we turn the highways to the nearest border town into corridors of death.

Oh, you say you were not lecturing me about alcohol? If you tolerate the harms that come with alcohol prohibition, sure you are. More important, you are lecturing your kids, and that will be about as useful in the aggregate as abstinence to sex education. I’m not making any claim about your kids in particular when I say the data show those policies don’t work on the community level.

Harm reduction is the goal. Lecturing is only good if it reduces aggregate harm. Punishment is only good if it reduces aggregate harm.

Don’t lecture me about alcohol.

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.

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turbojesus's picture
You can always rely on the kindness of strangers especially when the police chase them into you. Don't lecture me about alcohol. All the inflammatory DUI rhetoric leads to the persecution of disparaged groups, the invalids and the elderly. What about the people due to illness whom have to take medication? I guess they should just live on the streets, be unemployed and uneducated. Since they'll be persecuted under the color of the law for being intoxicated if they attempt to live out their lives normally. Now we just allow the police force to arrest anyone not fitting their definition of normality. Oklahoma has some of the strictest alcohol laws in the country; it's still a crap hole that nobody wants to live in which is probably why they want to be drunk all the time. My 80 year old father was arrested recently, put in handcuffs, had his blood drawn which showed no substances, and put in the county jail even though he passed the breathalyzer test. All because he refused to balance on one leg touch his nose and count backwards due to being advanced in years. Most people can't do that anyway when they've never done athletics or have any coordination training. He had to pay 1000 dollars an hour to constitutional lawyer for all the politicians making sensationalist claims like this which give the legal system no accountability.