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February 19, 2008

Shouldn't we have tougher recidivism sentencing laws for DWI?

This Ohio story about an upcoming DUI sentencing has my blood boiling again about the failure of states to adopt tough recidivism sentencing laws to respond to the very risky behavior of repeat drunk driving.  Here are the basics:

Three decades of drunken driving have finally caught up with 19-time offender Stephen W. Wolf thanks largely to a pair of quick-acting young men.  Wolf, 50, of Hamilton, faces up to 10 years in prison when he is sentenced today on his 19th drunken-driving conviction....

Wolf's lawyer, Robert Qucsai, says Wolf should not be judged by his driving record alone. "He's a really personable guy. He's really easy to talk to.  He's not nearly as bad as his record would reflect," Qucsai said Monday.  Even Qucsai acknowledges that people ask him: How could Wolf still be driving? Qucsai's answer: "It's not like he has a valid license."

Plenty of people drive despite having a suspended or revoked license, authorities say, and locking them up is the only way to stop them from driving....  Authorities say Wolf likely would not even be in court if not for Alex Heher, 20, of Fairfield Township, and his passenger, Adam Trantham, 19.  They followed Wolf after seeing him in a hit-and-run crash July 13....

Assistant Prosecutor John Heinkel... said it would be an over-reaction to blame the court system for Wolf's lengthy record without long-term punishment. "My guess would be that, in some of the prior cases, there were probably issues as to the (alcohol) testing, and negotiated pleas were worked out," he said....

Back in the 1970s when Wolf first started drinking and driving all drunken-driving charges were misdemeanors.  Those charges carried little or no jail time, no matter how many times a drunken driver was snared, Heinkel said.  Now, repeat drunken drivers are slapped with feloniesand a 2004 Ohio law adds one to five years for offenders with at least five drunken-driving convictions during a 20-year span.

The article rightly notes that, over the past three decades, drunk driving sanctions have become more severe. And to good effect: as this 2002 report details, considerable research "over 40 years has shown conclusively that good laws that are strongly supported and enforced with meaningful penalties reduce drunk driving."  Unfortunately, as this report also details:

Every state has an elaborate system of drunk driving laws, enforcement, courts, and punishment, but these systems do not work as well as they should.  Arrest rates are low.  Complex laws allow some offenders to escape any punishment. Other offenders can avoid a drunk driving conviction through a plea bargain. Sanctions are not applied consistently.  Sentence requirements are not completed.  These problems are not well known because many states do not have good record systems.  Drunk drivers have little fear of being stopped, arrested, convicted, and punished — so they continue to drink and drive.

In California, a petty theft following two drug offenses can be enough to get someone a mandatory sentence 25-year-to-life, but even Ohio's "tougher" DWI law only adds a few years for having at least five drunken-driving convictions.  I guess we as a society are not really as concerned about the loss of life as some death penalty abolitionist folks might have one believe.

February 19, 2008 at 02:14 PM | Permalink


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House arrest and car forfeiture seem like promising approaches for someone this willful.

Posted by: ohwilleke | Feb 19, 2008 2:39:57 PM

A few posts have had a rather self-righteous tone lately.

Look, not all death penalty abolitionists base their position on concerns about "the loss of life." For instance, some find it deeply problematic that our government kills individuals in our name. State killing is problematic for several reasons: (1) does the State always get it correct? (side note: although conservatives typically adore the death penalty, they love maligning the state's ability to do almost anything in almost any other context); (2) state killing is, at this point, globally almost exclusively a practice of non-democratic & illiberal polities, and the image & ideal of America as a beacon of hope and freedom suffers from our membership in a club that includes China, Saudi Arabia & other such champions of freedom and human rights, etc, etc

The point is that many abolitionists' concerns do not stem from some sort of bizarre economic efficiency point of view that our policies should maximise "lives saved" (which is why your ongoing series of posts about deterrence don't really address the issue: even if state killing deterred the odd murder or dozen each year, problems persist about the state's accuracy in punishing the defendants and about our membership in an undesirable international club).

You might as well complain that, in addition to campaigning for stricter DUI laws, death penalty abolitionists also ought to campaign for stricter food labeling laws to save the lives of those x# many of people who die from accidentally ingesting peanut traces each year. The issues aren't necessarily related, esp depending on one's basis for opposing the death penalty.

Posted by: Reader | Feb 19, 2008 3:06:23 PM

If these risk data are correct , the severity of a drunk driving conviction should scale dramatically with one's BAC. For example, conviction at a BAC 0f 0.18 should be five or ten times as serious as a conviction at a BAC of 0.08.

Posted by: William Jockusch | Feb 19, 2008 3:40:21 PM

Fair points, Reader, though I think my tone stems from the failure of most DP abolitionists to show much respect for the opinion of persons who may support the death penalty or for duly enacted laws that call for the death penalty.

In response to a few recent posts, I have been accused of having a "blotted out" consciousness of losing my "moral authority" for arguing for sentencing reform, of lacking "honor or humanity," of having "so little real insight, often to the point of being callous," of needing to "culturally grow up." Folks are welcome to hurl these sort of allegation, but my response then is likely to start taking on a more "self-righteous tone."

Posted by: Doug B. | Feb 19, 2008 3:40:36 PM

Fair points Doug. I haven't read the lengthy comment threads on the recent posts, but I can understand your frustration at receiving such (quoted) rhetoric from awfully self-righteous abolitionists.

Keep up the great work, and I merely meant to highlight the recent uptick in your rhetoric. It's understandable, but probably not that effective (just as the irritatingly self-righteous abolitionists' rhetoric is not effective, and irritates me for slinging around potshots at you based on a couple posts).

Posted by: Reader | Feb 19, 2008 3:47:11 PM

You'd love it down here in Texas, Doc, our prosecutors frequently obtain life sentences for recidivist DWIs, and also for recidivist drug dealing.

As you can imagine, this has completely ended drunk driving and we haven't had a DWI death in years as a result of this stern policy ... NOT.

In reality, Texas has more drunk driving deaths than California, which has 60% more population than we do. My understanding is the reason is not their 3-strikes law, which we have too, but they use the blow-to-drive mechanism for recidivist probationers, while Texas just locks them up with no drug or alcohol treatment. Also, if I'm not mistaken Prop 36 expanded treatment options for drunks as well as druggies, whereas here we basically have AA.

Posted by: Gritsforbreakfast | Feb 19, 2008 4:42:56 PM

Doug, I want to comment on a sentence in the story about recidivists and DWIs. "repeat drunken drivers are slapped with felonies." While the notion that persons convicted repeatedly of DWIs should be sentenced more severely is typical, it raises very intricate issues of sentencing, double jeopardy concerns and Apprendi issues.

Until Almendarez Torres falls, as Thomas keeps saying a majority of the court says it should, it does not violate the Sixth Amendment for recidivism to increase a defendant's sentence above the level allowed under the verdict or plea alone. So, aggravated punishment is not a problem. What is a problem is aggravated crimes. If someone is "slapped with a felony" for repeat DWIs, then the prior convictions are elements of a substantive felony. The question of whether the use of prior convictions can pass double jeopardy muster is completely different than the question of whether recidivism can increase punishment for the core misdemeanor of DWI.

Here is the big rub. What if the State tries to use the repeat DWI "felony" as the triggering felony under a state's Habitual Felon Act, as North Carolina prosecutors do frequently? Then, what started out as a misdemeanor becomes a "felony", which then is elevated to severe sentences if the three strike law is applied. Our appellate courts repeatedly uphold the concept of recidivism being an element of a substantive crime. In my opinion, if a prior conviction is an element of a crime, it violates double jeopardy because the def has already been punished for an essential element of the new crime.

bruce cunningham

Posted by: bruce cunningham | Feb 19, 2008 4:44:34 PM

Colorado has cut drunk driving deaths by 63% in the past 7 years.

Safer vehicles and greater enforcement have been bigger factors than recidivist sentencing.

Posted by: ohwilleke | Feb 19, 2008 5:19:19 PM

Doug - (responding to your comments to Reader)
The value and strength of this blog over most in the legal field is the exchange of views that takes place. True I sometimes use provocative phrases - but simply trotting out the now well known positions of either side of an argument, that have been going on for more than the past half century, serves no purpose. In order to test those positions to the limit it is sometimes necessary to be a little more aggressive. It is not, in my view, acceptable to be comfortable about the death penalty. The US stands virtually alone in the "western" world in maintaining it. Whatever cultural reasons exist for that, are insufficient or inadequate to be self-righteous about our defiance against international opinion, let alone the opinions of most major religious bodies to whom many of us usually look for moral guidance. You set yourself up as an agent of change - and you are respected for that. But don't assume that everyone is prepared to accept the direction you advocate. The death penalty is different because it demonstrates that the state sets itself up above the laws that it sets for its own citizens. It gives itself license to punish way above the limits of need. Indeed, in the US today, it practices this in a manner that is so exceptional in international terms that, were it not for our economic and military power, we should be condemned as a pariah of human rights. Some would say that we already are. You abuse the abolitionists for their passion, yet you are equally passionate in your views about the excesses of sentencing other than the death penalty. I accept everything you say about that. The only real difference between us is a disagreement of the relevance of the death penalty to the wider problem. But it is of such fundamental difference, as can be demonstrated throughout the many countries around the world who have broken the cord with the death penalty, that your position must be challenged. On this, it is simply wrong, and your position as an influential academic in the sentencing field means that at this time of national debate, vigorous challenge is inevitable. (maybe "lacking honor or humanity" was just a little over the top :) )

Posted by: peter | Feb 19, 2008 5:52:53 PM

In Iowa we put repeat DUI offenders in prison because the penalty is enhanced from a serious misdemeanor to an aggravated misdemeanor or a class D felony. 50% are returnees and some have returned many times (nine times is the most I have seen). Some of them (about 30%) have never been treated for alcohol abuse. It cost us about $6 million a year to keep about 260 of them in prison and what are the benefits from doing so? I have no idea.

As the drug court judge said "If it does not work try something else."

Posted by: John Neff | Feb 19, 2008 8:24:23 PM

Prof. Berman, your suggestion that "In California, a petty theft following two drug offenses can be enough to get someone a mandatory sentence 25-year-to-life" is incorrect. California’s Three Strikes law requires that the two predicate strikes must “serious” or “violent” felonies. Drug offenses (and DUIs) would not qualify to transform the new felony into a strikeable offense. (Also, petty theft by itself is not a felony, only petty theft with a prior theft-related conviction is.) That said, if a defendant charged with felony drunk driving had two prior robbery convictions, he could face a 3K sentence. However, under California law, 3 prior misdemeanor DUI convictions are necessary before he could be charged with a felony.

Also, Grits, while I don't know why DUI fatality rates in Cal are lower than Texas, it is not because of Prop 36, which expanded treatment in lieu of prison for drug possession crimes, but does not apply to DUI. In fact, prior DUI convictions can be a disqualifier for prop 36 drug treatment because DUI is considered “a misdemeanor conviction involving threat of physical injury to another.”

Posted by: Cal anon | Feb 21, 2008 1:23:11 AM

LET HIM Go yall u guys are mother fuckers let my dad go bitch ass

Posted by: His kid | Feb 15, 2012 3:08:45 PM

Let him goooooo jesus christ i hate everyone here talk shit people let my dad gooooooooo to long tooo long he cant even walk anymore so he aint able to drive stupid fckers i hate butler co i hate u people and powers can let my dad go

Posted by: His kid | Feb 15, 2012 3:13:01 PM

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