Wednesday, January 6, 2010

Too harsh? More on enhancements...

After yesterday's post, reader RG asked a couple of very good questions in the comments. They are highlighted and bolded below, and I'll respond as best I can to each in turn:

DAC, how much discretion is there on the part of the judge / jury to impose these types of "enhancements" at sentencing? Or is it completely automatic? It seems almost too harsh to put someone behind bars for 25 years to life for their fifth DWI.

The enhancements themselves come into play when they are alleged in the indictment, and proven at trial. If both of those things happen, the judge or jury has no discretion, no legal ability, to go below the minimums.

Now, what happens in many cases is that we allege the enhancements and make sure we can prove them. Then, during plea negotiation, we have our strongest hand available to help us achieve what we think is, ultimately, the fairest and most appropriate sentence. As an ADA, then, if I have a defendant looking at 25-life for his fifth DWI, I can waive an enhancement and bring the charge back to a second degree, and offer him a plea deal of anywhere between 2-20 years.

Sometimes the hammer of a large sentence is actually useful for getting a defendant with a substance abuse problem into a good, long, in-patient treatment plan. If I can stand there and say, "Hey, you can either do the treatment or go to the pen for X years," then sometimes a good end can be achieved.

As for whether it's too harsh, that depends entirely on one's own personal perspective. What I can tell you is that some of the saddest and most heart-breaking cases I see are those where some innocent person is killed by a drunk driver. If someone has an alcohol problem they simply refuse to address or acknowledge, some people think that at a certain point we have to stop worrying about fixing the culprit and worry more about protecting the community. But it's a tough balance and one that is constantly debated.

Here is one case I had last year, and feel free to comment: it was pretty much as the hypo above, fifth or six DWI plus the defendant had been to the pen for a drug offense. The minimum was 25 years, I offered about a third of that for a guilty plea on the DWI. Three defense lawyers, one after the other, begged him to take the deal. He refused. He even testified that he'd been drinking, taken prescription pain killers, and when stopped was on his way to buy more beer.

As I told the jury, my concern was that he was driving drunk and simply didn't think he was doing anything wrong, which meant he'd do it again... and again. And the kicker, which we weren't able to tell the jury at the time, was that he was on parole for a 25 year sentence for... DWI! (I'm not revealing secrets, by the way, all this is public record.) He ended up being found guilty and punishment was assessed at 25 years, the minimum.

Also, I really have to wonder what the defense attorney told those defendants after their fourth DWI conviction - were they aware of the probable outcome of their continued "diligence?"

I hope some of my friends in the defense bar will answer this one. I can assure you that all the defense lawyers I know will fully explain the consequences of a client's actions to him or her. As in the previous case, all three guys who represented the defendant warned him what he was facing. And clearly he knew himself the penalty for his next DWI, as he'd already been given 25 years for that offense! But I think there is only so much a defense lawyer can do because, in the end, it's their client's decision whether or not to take the deal or go to trial.

From where I stand, I do see frustration on the part of the lawyers sometimes. I think several things can happen. First, you have the proverbial "jailhouse lawyer," another inmate who tells their client what deal he is entitled to, because he knows a guy a couple weeks back who did the same crime and got X deal. Well, no two crimes are alike, and no two defendants are alike. And, of course, no two ADAs are exactly alike. Second, I think sometimes there is a mistrust when a lawyer is appointed by the State, a mistrust that can rise to the level of paranoia in some instances. And third, there can simply be a refusal to accept reality, call it denial or whatever you want. Maybe the defendant doesn't think what he did was that bad, or maybe he thinks his lawyer will really get him off, I don't know.

I do know that this is partly why I respect those guys, the criminal defense lawyers, so much and why I'm glad I have my job and not theirs!


  1. So the short answer is that enhancements are prosecutorial choices that allow you to jack up the sentence on small-time offenses to the point where no rational person would assert their rights and reject a plea bargain. No wonder less than 2% of felony cases go to trial.

  2. Well, I don't think that's entirely fair. Enhancements are designed, and used, on the "stick" end of the criminal justice approach. Answer me this: if an individual has received treatment (paid for by the state) and continues to risk other people's lives after repeated chances, is it really "jacking up the sentence"? Give me a good alternative for the guy who is on 25 year parole for DWI, drives drunk again, but refuses to acknowledge either his guilt or his addiction?
    Could it be that only 2% of cases go to trial because the police all do a thorough job, arrest the right person, and the DA's office works out a fair plea deal? It's certainly possible, right?!

  3. No. I think Gritsforbreakfast's point is absolutely right.
    As for the specific issue, it's not a DWI that should send someone to life in prison. There are other crimes that are likely to also happen, such as manslaughter, or assault with a vehicle, or others, when someone is that stupid. Those are the reason to send someone to jail for life.
    If none of these additional issues are present, we're really talking about a future danger of serious crimes, not present ones. If so, it's uncomfortably close to the idea that we should people to jail because some of the things they've done statistically indicate they'll turn into murders.
    And perhaps if someone really is so deluded that they don't understand the cause-effects of driving drunk, is there's any doubt they're not mentally competent to make serious decisions? Including participating in their trial. I understand our prisons are serving as replacement for many closed mental institutions, but perhaps that's not for the best.

  4. thanks for clearing that up, DAC. I still don't know where I stand on the continuum of GfB's position and your position, both of which make a lot of sense. looking forward to more posts, keep up the good work!

  5. If a person went to prison in the 90's for a drug charge, and later is in trouble again for a drug charge which they say the drugs wasn't theirs can that be enhanced? Also if 2 people are in a vehicle, and the police search the vehicle because they saw an open beer can, and finds a serenge on the passenger side shouldn't they charge both people with this crime?


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