Wednesday, March 3, 2010

What do we DO?

Following up from The Assistant's wonderful post yesterday, I want to ask a question and invite the same kind of thoughtful response that my fellow blogger Grits for Breakfast gave in his comments.

Here's the comment that provoked the discussion was this:

"a criminal does not endanger society in the same way if he is isolated from it ... there is no surer way to take a habitual DWI offender off the road than to deprive them of their liberty."

Grits wrote an excellent response, which you can see here in full, but I think can be summarized by this:

"The practice of punishing DWI with no victim harshly (I'm guessing without any treatment while in jail) while the violent offender gets a lighter sentence seems like a perversion of priorities, with all respect."

Which got me thinking. I agree with so many of the positions taken by Grits, I really do, which may be surprising to some but not on this one. I hope others will chime in but my take on this specific issue is that sometimes people will simply refuse to admit they have a problem, refuse to submit to treatment, refuse to abide by the law.

I had a trial last year. DWI. It was the defendant's 5th or 6th conviction, I don't remember exactly. I do remember that he committed the offense while on parole for a 25 year sentence for DWI. He'd gotten out just a few months earlier and was at it again.

Thing is, he'd been on probation, he'd been given treatment, and he was still at it. More shocking to me was his attitude. He testified during trial, admitting that he'd been drinking, had taken vicodin, and was on his way to buy more beer to take back to his friends house (and then later drive home). He also admitted that for other people, mixing alcohol and prescription drugs was a bad idea and made them unsafe. Just not for him. He simply refused to see that he'd done anything wrong. And when he got the minimum, another 25 year sentence, he looked shocked.

So a couple of points, or questions:

1. What is the criminal justice system supposed to do with someone like that? Just slap his wrists and send back out on the road to keep drinking and driving until he kills someone, and then punish him? No thanks. As my trusty Assistant the new father points out, we have a duty to protect those around us. Is it a waste of his life that he goes to prison? Sure, absolutely. Is it anyone's fault but his own? No.

2. More of a point than a question, and I don't mean this to come across as patronizing so forgive me if it does: but I think many people who understand the theories of criminal justice and have absolutely the best intentions, bu who don't work in the system, don't get bitten by the reality sometimes. I have moved to the right since doing this job, a realignment I call it (my wife calls it treacherous, I think!). But take defendant above: what all the pro-treatment, repeat-the-probation folks don't get is that you can be an alcoholic and not be a danger to others, not break the law repeated times while risking others' lives. This guy wasn't being punished for drinking, or even being an alcoholic. He was being punished for driving his vehicle while drinking. An avoidable behavior that he has control over.

Ultimately, Grits is right that our resources are not always spent where they should be. And he's right that locking this dude up for 25 years is out of proportion to the crime itself, when that crime is looked at in isolation.

But the question remains: what do you do with someone like that?


  1. I agree with Grits. If your argument is that the punishment is tailored to match the risk of a future crime, because it's only a matter of time before it happens, then let's apply it for all crimes. Let's give a taste of jail to everyone based on statistics, or worse, based on what makes me feel safer. I know that absurd of a position isn't what you're thinking about, but that's what these laws are doing.

    I'm quite disturbed that point 1 is really a question. First, there's the issue of prescription drug abuse. That in my mind bumps up the punishment. Then i wonder why he still had a license (and if not, another bump in sentence). Or could afford insurance (another bump). Or that the state allows title of vehicles to be given to people like that (and if not, another bump, and another if he was joyriding). If it's 25 years on just a DWI, what we have hear is legal laziness, where we just want an easy burden of proof to just send the guy away. 25 years for all the above, yeah, that seems more appropriate.

    And this is a legislative failure. Really, how can the legislature pretend to be tough on drunk driving, simply by giving business to jail companies, if they are not allowing for bans on owning/renting vehicles for people on a registry for example. I mean, i could probably come up with a dozen different prophylactic ideas to minimize the chance that guy gets back behind a wheel for a very considerable time. I bet a bit of bureaucracy and technology costs less than the cost of the legal process+jail times+probation monitoring+damage caused we currently have.

    I hate to be so blunt, but the legislature needs to be a lot smarter to achieve the results we all want rather than just grand standing on sound-bites about how tough they are on crime.

    As for point 2, watch out. It sounds like you're doing a very honest (and humane) job of correctly applying the laws as crafted by the legislature. However, just because those are the laws doesn't mean they are moral (or smart). We the legal profession have a duty also to comment on where the law could be improved.

  2. "Just slap his wrists and send back out on the road to keep drinking and driving until he kills someone, and then punish him? No thanks." This pretty much sums up how I feel, DAC. And I wonder what your thoughts are on our stalker laws? Stats show that a certain kind of stalker is very likely to eventually harm or kill their victim, and yet nothing can be done until they actually do it. Very frustrating.

  3. @Jennifer: that's almost too many fallacies in one paragraph to process. False dichotomy, straw man argument, and an appeal to probability at least by my count.

    Whereas The Assistant correctly summarized the issue (his quote of Grits), your quote is just nonsense.

    As for whether there really is some excluded middle in the case of stalkers (there's not) the legislature is where more remedies can be crafted to correctly add more options for law enforcement and DAs.

  4. Thanks for commenting guys, but do let's keep it all civil and polite, remember you have an Englishman running the place. :)

    Jennifer, you are right in that stalking cases are very very hard to prove. I don't know the stats on when or whether stalkers eventually become an active danger but we've all heard the stories, certainly. One of the problems is that it's hard to say when something become "stalking." I mean, unlike drugs where you know whether you have a gram of coke, or DWI where you can test someone's blood, one can argue that an over-sensitive person might feel like they are being stalked, an under-sensitive person may not realize they are being stalked, and the stalker might genuinely not wish to frighten or harm someone! There is a statute governing what is "stalking" and the burden is, rightly perhaps, high. I have a stalking case now that I'd love to discuss, but that's probably going to trial, so maybe afterwards.

    As for Pausanios comments about the legislature, you are right in the main but there's only so much they can do. I guess one of the points I was trying to make is, we look everywhere for answers, solutions, blame, but sometimes we have to look at the guy committing the crime.

  5. Just pumping up conviction sentences does not qualify as a reasonable effort to stamp out drunk driving. I disagree that's all they can do--i've already outlined examples for prevention, probably more effective and cheaper. I guess it's the least work to be the even-more-punishment-guy on the ballot.

    But yes, by all means look at the guy committing the crime, my comment on the legislature was a bit of a sidetrack. The meat of my argument boils down to this question: did you seek and obtain convictions on any number of the other illegal activities that seemed to have attached to the guy's conduct above?

    Understandably, the answer can legitimately be no: if you can easily get 25 years minimum for just the DWI count, it seems a waste of your resources and time to get anything else. Or those other activities may not have been illegal, even if they ought to be.

    On your admonishment, i admit to being a bit annoyed at the implication that anyone disagreeing with the current system wants wrist slaps and deaths on the roads--but whereas it came across as a rhetorical device in your OP, it crossed the line in Jennifer's comment. That statement is as much nonsense as saying that either you're for reform or you want to fry people for drinking near a car.

  6. "i've already outlined examples for prevention, probably more effective and cheaper."

    Actually, no. What you did say was that you could "probably come up with a dozen different prophylactic ideas to minimize the chance that guy gets back behind a wheel for a very considerable time." What you didn't do was actually share any of those with us.

    But let me guess based on your ideas for enhanced sentencing: perhaps suspending someone's drivers license? Preventing them from owning a car (Ignoring the fact that would be blatantly unconstitutional)? Making them go to DWI education classes? Putting them on probation? Adding an ignition interlock? Making them attend AA? Take Antabuse? Go to dependence counseling?

    Guess what. We do all of those. Well, the constitutional ones anyway. And we still have cases where someone borrows or steals a friends car, drives it without ownership, license, or insurance, or while on probation, or while their OWN car has an ignition interlock on it, and kills people while drunk.

    "I bet a bit of bureaucracy and technology costs less than the cost of the legal process+jail times+probation monitoring+damage caused we currently have." Really? Because I'd bet you have a license to print money if you can actually make it work. The problem is that it doesn't. Whatever technology or bureaucracy you throw in the way of a repeat DWI defendant they will simply ignore or bypass. At the very most here's what will happen- a judge will order the defendant to comply with your new, personally created and foolproof regime. The defendant will ignore the judge and drive someone else's car anyway. Even if their probation officer is lucky and finds out before they start driving drunk again, then we'll file a motion to revoke probation. Now we're back in court with that same defendant. What now?

    Lets be clear- for many DWI defendants the system as it currently works IS appropriate. They serve their probation, attend their classes, maybe get a handle on some underlying dependence issues, and never show up back to court. But these aren't the defendant's we're talking about here.

    As to "did you seek and obtain convictions on any number of the other illegal activities that seemed to have attached to the guy's conduct above?" I'll have to ask you to go take a look at section 12.45 of the Texas Penal code. The legislature has specifically created that section to prevent the massive waste of resources that's inherent in proving every single technical infraction during the course of a crime. And further, in DAC's example it's not as though the defendant committed a single DWI and got 25 years. This was, at minimum, a FIFTH. Your suggestion that "If it's 25 years on just a DWI, what we have hear is legal laziness, where we just want an easy burden of proof to just send the guy away." is without merit of any sort.

  7. Thanks for the reply, DAC. It is a grey area at times.

    I've said it before, I'll say it again: I truly admire the work you guys (and gals) do.

  8. I think you've missed the point. I wasn't saying you were doing something wrong, i was saying that the right way to justify 25 years is exactly by using the additional crimes. And please correct me if i'm wrong, but 12.45 saves you work while allowing the admitted additional crimes to be taken into account to augment punishment.

    Look, i don't care in the abstract that it's the 12th DWI (well, i do, but not to the same extent as current law clearly). So if you're telling me "it's morally right to send someone to jail for 25 years for fifth DWI, with never any augmenting elements", i'm not persuaded: it seems disproportional when people who have actually caused far greater harm are getting less punishment. Perhaps you can convince me that we should hand out greater punishment in these other cases, and that we just should live with very harsh laws indeed because of human nature and our need for safety.

    The alternative i see is that the 25 years could be not just for the DWI, but because by virtue of the additional loses of privileges (eg license) on initial DWI are the ones that result in the augmented penalties. Of course the effect of that is that someone who mends their way over time, regardless of how many DWI they might have had 20 years prior, would be back to facing an "initial-type" DWI should they stray again. That seems like a neat self-balancing mechanism. It is also harsher on those people that are on drugs, or otherwise are more worthy of augmented punishment... even on their -first- DWI.

    As for the comment that i didn't "actually share any" ideas at prevention you're absolutely right, and on your examples as well. I foresee a lot of them would involve a registry or gadgetry that you do currently use (but that isn't standard). There's a registry for guns, for predators, for work status. Perhaps more is unpalatable, but that's another argument. You can also see how this idea creates additional crimes which if circumvented, show greater intent on doing wrong and harm on the part of the perpetrator, and justify (in my mind, it's true) harsher punishment. We shouldn't make it so easy that someone who shouldn't be behind a wheel has access to a vehicle when he's figuring how to get home when he's already drunk, at the bar, or home.

    Still, if we have all these punishments and you're still seeing so many DWI cases (besides the obvious questions of what it's going to take to question whether the system is working), let me ask this: what do -you- need as a tool to make sure that when the convictions you get in the initial DWIs aren't paper tigers? You have by far the greater experience, all i can really provide as a citizen is a legitimate judgment on the behavior of my public officials and the laws we ought to have. So you win all these cases and get the bad guys's license, etc. This is excellent. Where does the process fail after that? What do you need, or the police need, to make sure we can constitutionally minimize his being able to circumvent that?

    The bottom line is that anyone who really cares about the public safety ought to put in more work on prevention (and it is more work) than to just increase punishments. Otherwise what do we make of cases like this:
    "Minnesota Supreme Court Rules DUI Possible in Inoperable Vehicle"

    I freely admit my total ignorance that there is a constitutional right to own a car, and to operate it, or have it be operational, i would be grateful for the cite. I know the clause that protects gun ownership, and even then felons are not usually permitted to own firearms.

  9. "if you're telling me 'it's morally right to send someone to jail for 25 years for fifth DWI, with never any augmenting elements', i'm not persuaded"

    Frankly, if you don't see the commission of multiple offenses of the exact same type, with increasing levels of punishment each time as an "augmenting element" then I have absolutely no idea what to tell you. Sure, we could completely change the enhancement laws to be reliant on unrelated crimes to suit your preferences, but what you're describing is nothing more than a personal preference for the basis of enhancement and not any substantive change. Enhancement should reflect the likelihood that someone will commit the crime again and there's nothing more probative of that than the fact that they've committed the exact same crime time and time again. What you're proposing is a distinction without any difference, other than being completely disconnected with any assessment future dangerousness.

    "There's a registry for guns, for predators, for work status. Perhaps more is unpalatable, but that's another argument."

    So... A DWI registry? We have one of those. It's called the DMV. Not having a license doesn't stop people from driving drunk so why would being on a registry? How would you enforce it? What's the point?

    "We shouldn't make it so easy that someone who shouldn't be behind a wheel has access to a vehicle when he's figuring how to get home when he's already drunk, at the bar, or home."

    So what's the solution? Short of cutting off the hands and feet of every DWI defendant, there's no actual way to prevent them from walking out of the bar and getting behind the wheel of a car.

    "So you win all these cases and get the bad guys's license, etc. This is excellent. Where does the process fail after that?"

    The snarky answer due to my current state of agitation and the fact that I haven't slept well in over a month is "The very moment some defendants walk out of the courtroom."

    The real answer is the moment we acknowledge that we're dealing with people. We can talk about technology and registries and treatment all day long, but so long as a defendant is walking around in the free world they can choose to drink and they can choose to drive. If they don't want to comply with their probation, they wont. While prevention works in some cases, there are some places where it simply will not, under any circumstances. Some defendants will not acknowledge what they are doing is wrong, or that their behavior should in any way change. Any judgment for probation is a paper tiger- it's only as effective as the defendants fear of getting caught and going to jail. There's nothing that you or I can do to stop that.

    Well, I take that back. I can stop them. I can send them to jail. It's not a great solution, but sometimes it's the only one.

    And there's actually one place that Grits and I agree on that hasn't been touched on here as the best way to prevent DWIs- population density, neighborhood bars, and public transportation. I lived in Washington DC and never once had to think about such things as a designated driver since we all either got on the bus, subway, or walked home at the end of the night. That's the quandary of criminal justice- if you're looking at the penal code to reduce crime rates then you're looking in the wrong place. The best solutions are structural, but in our current political environment they're the most difficult to implement.

  10. I agree strongly with your discussion of the environment. After my last comment i was wondering about the fact that outside of the NE there's no way to get around without a car--no subway, shops and work beyond walking range, etc. You also raised points which give me pause.

    You're right, "the commission of multiple offenses of the exact same type" seems to be a meaningful data point. I do not wish to discount that, though i admit being tempted to say that a punishment i pay for a crime should match in the same way that what i pay for an apple one day i pay again tomorrow. My fundamental concern is over the proportionality of the escalation. Subjective, yes, but 25 years is huge and it can be compared directly to other punishments. An earlier post of yours estimated 17 years punishment for murder on average in Texas. We're saying that 4 or 5 DWI (with no damage, no injuries, having a license, etc) is worse than killing someone. A rapist is going to get out before the DWI guy? We can't agree that seems off?

    You write: "we could completely change the enhancement laws to be reliant on unrelated crimes to suit your preferences". I understand what you mean, but i suggest that you're mischaracterizing my position with "unrelated", and that aggravating factors are not my own hobby horse, but common. It's worse to commit a crime with a deadly weapon, say. The point is specifically to have direct obsctacles after a first DWI, whose circumvention toward another DWI proves a worse and premeditated state for the subsequent crime, and thereby justify the augmented punishments. I think it's fair to say all "unrelated crimes" i've actually suggested are specifically related to driving. Most are more than that, being directly related to driving safety. A license is related to driving. Someone driving after abusing prescription drugs is more dangerous.

    Say we wave these away, that these are already elements the law can weigh in and not new i'm sure, but the idea is to indeed give the weight they deserve. Yes, that means we now have differences without a difference in result... except for people who do _not_ ever have these augmenting elements! And who are both less dangerous and less culpable.

    Your "snarky" answer is quite appropriate i feel. Perhaps it's not that bad, but i can imagine what it must mean to know that a defendant walking out without a license, who drove to court... might get back in his car to go home. Despite agreeing that the environment makes this far more challenging here in Austin, i'm happy to brainstorm to see if some solutions might yield better results.

    I do not know of penalties to owners of vehicles who might be shown to have let their car be driven by someone drunk or without license. Or penalties for someone who sells or rents a car to someone drunk/without license. Certainly our driving IDs could be vastly improved, and some businesses could be provided with ways to check their validity by the same methods they already use for credit cards.
    A car can detect erractic driving (we're really close on the car driving itself, perhaps making all this moot in the future) and reduce maximum speed or "pretends" to run out of gas.
    Instead of bars having to close by a certain hour, they be forced to stay open (taps closed) rather than disgorge drunkards onto the streets.
    Zoning restrictions such that bars or purveyors of alcohol are in pedestrian only places. Heck, require parking nearby be non-descript, with no numbering or map, each floor identical, so that it takes drunks an inordinate amount of time to find their cars.
    I do not have a problem with public transportation facilities existing on the tax payer dime, or formalize some of the systems to get drunks safely home and back to their cars the next day. We can add a tax on alcohol to provide funding, so that revenue and cost should be close to proportional.

    Anyway, thank you for an interesting discussion.

  11. By the way, I should add this little factoid to my story of the guy who got 25 years: during plea bargaining, I offered him seven years. Three lawyers begged him to take the deal, the third was forced to try the case.
    Because he was so detached from the reality of the situation I didn't see fit to waive the enhancements that got him to 25 as the new minimum. As I told the jurors: "He doesn't think he did anything wrong. That means he'll go out and do it again tonight, tomorrow night, or any night he chooses."
    They decided they didn't want him to do that and connected him back to reality, at least for now.

  12. This same question was asked in 2004 by Judge Steven Alm of Hawaii. Today, his probationers are 72% less likely to use drugs, 55% less likely to be arrested and 53% less likely to have their probation revoked and they spend fewer - NOT more - days behind bars. His deterrent program a) notifies probationers that the rules will be enforced, b) minimizes windows for safe drug use through frequent and random testing, c) responds to dirty tests and skipped appointments with certain and immediate arrest and short stays (e.g. 2-5 days) in jail, d) serves warrants on absconders and e) provides treatment upon request or by mandate after several failed tests. More on that approach and the randomized controlled evaluation (!) is available at
    The same basic approach can - and has - been applied to problem drinkers. See, e.g., the 24/7 Sobriety Program: The key to these programs is the communication of and follow-through on a credible deterrent message. When done right, this avoids the 4th, 5th and 6th dangerous DUI and it avoids the 7-25 years of incarceration at approximately $25,000/year in taxpayer expense. That is, less crime at lower cost.

  13. That sounds a lot like the SHORT program they run here in Travis County, very similar rules and regs. I don't know the stats on its success, but search my blog for "SHORT" and you can see I wrote about it a while back.
    But for SHORT, like any program, the underlying motivation has to come from the individual. Those who refuse to even start the process, by recognizing they have a problem, won't benefit from SHORT or anything else.

  14. SHORT appears to be a drug court, which is substantially different from the HOPE and (I believe) 24/7 Sobriety models. First, SHORT has quite restrictive admissions criteria ( that allow in ONLY possession offenders. A minority of probationers in HOPE, by comparison, are drug-only offenders while most have extensive non-drug and felony priors. Second, HOPE isn't a specialized court; it's probation where there's no safe window for substance abuse and the rules are swiftly and certainly enforced. SHORT may well be doing this, but these are empirical questions to be answered: how often are the participants drug tested? What's the probability of an aversive sanction given a dirty test? What's the average time-to-sanction given a dirty test? And finally, how aversive are the sanctions? If the answers are "no safe window; 100%; immediately, and; meaningful but no more than needed to deter violations," I'd put my money on it. The problem is that most agencies/programs do not operate this way because it requires additional coordination between entities and a change in business practices.
    And that brings me to your point that programs only work if the participants are motivated. The evaluation results previously provided (via link) show this not to be the case: the participants were randomly assigned (that is, because motivation is the same in both experimental and control groups, the only explanation for the different outcomes is the program itself) and the results are drawn from an intent-to-treat model (that is, the evaluation does not ignore people who failed to participate, or were lazy, or denied their problem).
    With all due respect (I really mean that: you have a great blog and great ideas), the issue of motivation pertains to practitioners at least as much as offenders. While in NYC, Chief Bratton could just as easily have said, "the police can't control crime because would-be criminals make their own decisions." But instead he said, "hold me accountable and I'll hold my precinct commanders responsible, and we'll analyze this stuff and put cops on dots, police quality-of-life infractions and bring down the crime rate." He did it in policing and there's no reason it can't be done in the courts and through probation and parole.

  15. First, I can't believe Texas has a felony DUI statute with punishment up to 25 years. Ours only allows for 5. There was a time when I thought sending someone to prison for several years over a DUI was excessive; however, after speaking with families of people killed by drunk drivers and people who will never walk again, I have definitely come around. The thing about DUI is the inherent risk society faces because there is a substantial likelihood that a drunk driver will eventually injure someone. That is very different from victimless crimes such as drug possession. It's comparable to someone who goes out with a blindfold on and shoots a gun. Sure, someone might never get hit but it's just inherently dangerous. And drunk drivers continue to drive drunk despite suspended licenses, ignition interlock devices, counseling, etc... The first step should always be to rehabilitate by sending them to 12 months inpatient rehab or something similar but eventually prison is the only option.

  16. Georgia ADA: actually, Texas law allows for a life prison sentence for DWI. The way enhancements work, if you have two previous trips to prison, and your new case is a felony DWI (i.e. third or more) then the punishment range is 25 years to life. So 25 is the minimum!


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