If One Registry, Why Not More?

The rationale for why the State of Maine needs a law  establishing a drunk driver website is the same given for every registry and variation on a theme. 

More than 8,000 Mainers were arrested for drunken driving in 2009, the most recent statistics available, and Rep. Rich Cebra, R-Naples, says Mainers should know who those drivers are.

“I want a website at [the Maine Department of] Public Safety that will have their names and addresses and their picture,” he said. “People need to know about drunk drivers that might be living next door and taking their kids to soccer practice.”


Cebra said his measure would establish the website so that Mainers could search their community to see if any neighbors are convicted drunken drivers, and whether they are multiple offenders. He said it would be similar to the state sex offender website but would not be a registry.


Blah, blah, blah.  Do it for the children.  After all, should the neighbor’s know that they guy two houses down blew .08 BAC?  You can be they won’t lend him the riding mower any more.  And Rep. Cebra’s even figured out the perfect way to pay for it, since everything government does is very expensive.


“This would depend on the conviction information that is already being collected,” he said, “and I am proposing a $25 surcharge on every OUI conviction to pay for the website construction and operation.”

Thankfully, no one has figure out yet that if they impose a $10,000 surcharge on everyone convicted of drunk driving, they wouldn’t have to lay off teachers.  But I digress.

The proposal is hardly a surprise, as the fashion of returning to the stocks in the village commons, on top of whatever criminal penalties are imposed, offers vast opportunity for the enterprising politician.  Toss in some child welfare argument and, no matter how tenuous the connection, it’s usually good for re-election, at least for one term.  Nothing to see here, folks.

But what disturbs me far more is where the support comes from for such headlong dives down slippery slopes.  It’s not MADD or SADD or BADD.  We expect them to mindlessly support any initiative designed to penalize drunk driving.  That’s why they exist.  No, they aren’t the problem.  This is the problem.


Regular readers know that I have long been troubled by the threats posed by drunk drivers and have long believed that communities ought to be as worried about drunk drivers as they are about sex offenders.  I am generally agnostic concerning the use of any crime registries unless and until research effectively demonstrates that they foster public safety.  But it seems to me that if they make sense for sex offenders then they also should make sense for drunk drivers.

These aren’t the words of some political websites frequented by readers wearing tin foil hats.  These are the words of lawprof Doug Berman.

There is nothing that better supports, better emboldens, political thought than academics and scholars.  When it comes to sentencing, there is no scholar more persuasive than Douglas Berman.  No matter what the penalty or harm to be imposed, Doug’s backing can mean the difference between success and failure. 

It’s possible that this is just a throw-away comment, tossed out thoughtlessly and without the hard work of deliberation.  Or it’s possible that Doug Berman means exactly what he says, having given this subject intense scrutiny and purposefully offering his deepest thoughts on this subject for Cebra and any other politician looking to make a name for himself to use. 

Having much respect for Doug’s efforts, as well as his focus on a very narrow area of scholarship, however, his lack of distinction between sex offenders and drunk drivers, as well as his agnosticism, which in effect works out to support, toward crime registries, is shocking.

Does this suggest that a drunk driver is the same, or even remotely similar, to a sex offender?  And I’m not talking about the absurdly overbroad inclusion of people convicted of public urination on registries, but the real, hard-core, out-of-control child molesters?  It strikes me that neither the nature of the offense, nor the nature of the harm, has any similarity.  The sole factor is that both are crimes.  Aside from that, there is nothing to connect the two, and no rationale that suggests the concern for an out-of-control child molester living next door to one’s child to the Mainer who had two glasses of chardonney with his lobster.

Compounding the problem is the laissez faire attitude toward registries in general, that if they’re going to exist, why not have a registry for everything?  Where is the critical thinking?  Where does it end?  Does it end?

This is an invitation to slide down the slippery slope.  There may be no justification for a sex offender registry, but as long as we’re being stupid, let’s be really stupid.  Can this possibly be a sound basis for another registry?

It wouldn’t matter if this position was espoused by someone of lesser reputation, lesser credibility.  But when it comes to sentencing, which includes the pseudo-civil, extrajudicial penalties of being tainted with the scarlet letter so all the neighbors can hate you, so employers will fire you, so no one will rent you an apartment or let their kids play with yours, there is no one whose opinion matters more than Doug Berman’s. 

Are all crimes the same, all deserving a registry because judicial sentencing, zero tolerance, mandatory minimums, three strikes laws, aren’t doing enough harm to our society?  If one registry exists, is that a reason to have a registry for everything?  Why not? 

We’ve already learned from the sex offender registry concept how quickly is devolves into overbreadth, how devastating and inappropriate the scope of harm it causes, how it’s created a second class citizen whose life, and the lives of family members, are pointless harmed beyond repair.  So let’s do more of the same?

I don’t get it.  But then, my opinion doesn’t count.  It’s Doug Berman’s opinion that counts, and he doesn’t seem to have a problem with it.

9 thoughts on “If One Registry, Why Not More?

  1. John Burgess

    I’d like to see one new registry: Former Elected Officials. That might be cumbersome, so perhaps it should be limited to those who have written clearly noxious laws. (See: “But They Don’t Get Their Lives Back”)

    The registry could be financed by ads taken by purveyors of tar and feathers.

  2. Mark Draughn

    I don’t see the safety value of a drunk driver registry. I suppose if I looked up drunk drivers in my neighborhood and surveilled them to get the model and license plate of their car, I could try to take evasive action if I see them coming…but that would only protect me against drunk drivers who live in my neighborhood. By definition, don’t drunk drivers get around? And what about when I’m not in my neighborhood? And doesn’t a lot of drunk driving take place at night, when it’s hard to recognize vehicles past the glare of headlights? And…and…oh never mind.

    If registry advocates were really serious about the public safety value of knowing your neighbors’ criminal tendencies, shouldn’t the number one priority be to establish a registry of convicted arsonists? Or what about poisoners? Wouldn’t you want to know if the guy manning the food stand at the block party is a convicted poisoner?

  3. James Marra

    “But it seems to me that if they make sense for sex offenders then they also should make sense for drunk drivers.”

    The critical word in Prof Berman’s proclamation is “IF”. IF sex offender registries make sense, it is hard to argue that drunk driver registries are fundamentally different.

    Note that Prof Berman never said he actually supports sex offender registries OR DWI/DUI/OVI registries; rather he said that whatever rationale (or irrationale, if you will) supports one should support the other. I don’t mean to speak for Prof Berman, but his posts (pural) on registries seems to express dissatisfaction with their irrationality by pointing out that nearly any crime could be deemed worthy of placing the convicted on a government approved and sanctioned blacklist.

    But even if I’m wrong in my analysis of Berman-speak, the quoted hypothetical is classic Berman. Every day in the mandatory 1L Legislation class at Ohio State, Prof Berman would pose some argument and follow it with “Is it a good thing? Is it a bad thing? I don’t know…but it’s a thing.” Granted, at the time he teaching–rather than blogging to the world–but Prof Berman likes to provocatively make others think about the natural limits and logical consequences of their arguments without tipping his hand as to which side he supports. I read his post not as an endorsement of drunk driver registries, but rather as just another example of intellectual probing.

  4. SHG

    There are a number of significant problems with your analysis, not the least of which being that Doug has taken a position here, that IF (yes, we all see the word “if”, though its hardly as simplistic an “if” as you surmise) sex offender registries make sense, then a registry for any other crime makes sense. Are all crimes the same?  Do the same incentives and disincentive apply to all offenses?  Do all threaten public safety, and all in the same way? Are there neither unique nor unusual features that can make a registry more appropriate for one type of crime than another?  If the answer to any of these is “no,” then his proposition fails. I suggest that the answer to each of these questions is “no,” and his “IF” fails miserably.

    Doug took a clear position on his blog.  We’re real lawyers reading his words, not law students fascinated by pedanticism or desperately seeking pedagogical approval.  If that’s Doug’s purpose, then he should keep it in the classroom and not publish it.  Once he puts it out in the blawgsophere, however, it’s not an exercise for students, but an opinion that can be used to do actual harm to real people.  If that’s not his purpose, then posting such an opinion is reckless.

    And as for sex offender registries alone, while he may claim to be agnostic pending empirical proof they enhance public safety, there is a ton of anecdotal proof that they are destructive and deeply counterproductive in their overbreadth in real life.  In the absence of a heavy countervailing argument that they not only improve public safety, but do so to such a monumental extent that it outweighs the terrible damage done, there’s no excuse for being agnostic.  It’s an untenable position to take.

  5. Tom

    I hope some legislator in Maine adds an amendment to this Bill that requires a registry for all Police Officers who have been successfully sued or settled against for using excessive force against a member of the public. The registry would include the officer’s name, photo, and address. This is vitally important for the safety of our children because these officers could be assigned to my child’s school and I should have a right to know if they have a history of beating and abusing members of the public.

  6. Alan

    Why don’t we just build a wall all the way around the United States, call it a prison, and be done with it?

  7. John Godfrey Spragge

    According to the NTHSA, traffic crashes with alcohol involvement on the part of the driver caused 9,817 fatalities in 2009. That means crashes with alcohol involvement by the driver cause almost a third of the traffic fatalities for that year. A year before, according to the US Census digest, murders of 1,502 persons under 18 took place, and of all homicides for which the authorities determined a cause, 34 arose out of rape or some other sexual offence. As horrific as we find the crimes of pedophiles and other sex offenders, the numbers seem to make clear the driving while impaired causes over two orders of magnitude more deaths.

    I submit, therefore, that the reasoned arguments that call for registering sex offenders have considerably greater weight in the case of drunk drivers.

  8. SHG

    This is prime example of how statistics in the wrong hands are dangerous.  First, the number is attributed to “alcohol involvement,” not drunk drivers having caused an accident, and has long been recognized as a misleading stat used by people trying to manufacture an argument that people will blindly accept. This stat includes deaths were anyone had any alcohol, including passengers in a car or the victim. 

    More importantly, it has nothing whatsoever to do with the causes, incentives or disincentives of either drunk driving or accidents caused by drunk driving.  That there may be more drunk drivers than pedophiles has nothing whatsoever to do with the purposes of registries.  Your argument is bizarrely irrational; not only unreasoned, but fundamentally ridiculous.  For the safety of yourself and others, stay away from statistics.

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