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!