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October 20, 2008

More examples of undue leniency shown to repeat drunk drivers

Drunk drivers pose a much bigger day-to-day threat to average Americans than terrorists or sex offenders.  As this official data spotlights, though alcohol-impaired driving fatalities declined in 2007, roughly 250 persons were killed each and every week in the US as a result of alcohol-impaired driving crashes.  Nevertheless, though we have an on-going war on terror and see lots of new law designed to get tough and hyper-regulate sex offenders, the terrible harms from the crime of drunk driving still has not prevented recidivist drunk drivers from getting breaks at sentencing.

The latest evidence of undue leniency being shown to drunk drivers comes today from the Milwaukee Journal Sentinel, which has this fascinating new article headlined "Most felony drunken drivers avoid prison."  Here are excerpts from the piece:

Four-year-old Jon Port's 1991 death marked the beginning of a grass-roots movement to toughen the state's drunken-driving laws.  Eight years later, a new law took effect, making fifth-offense drunken driving a felony.  The Legislature's intention was to get repeat offenders off the road. Yet almost a decade later, fewer than half the people sentenced for the felony in Milwaukee County go to prison, a Journal Sentinel analysis found.

Almost two-thirds of people sentenced under the stricter law spent a year or less in custody.  Those with higher blood-alcohol levels didn't always serve more time. And almost a quarter of the people convicted of the fifth-offense felony between 1999 and 2006 already have re-offended — some more than once....

Just 70 defendants, or 43%, went to prison, receiving an average sentence of 18 months. Seventeen of those had an opportunity to shave substantial time off their sentences by completing boot camp or a treatment program.  At least one defendant got out early after petitioning the judge.  More defendants were sentenced to probation than prison.  Although 70 of the 71 who got probation terms served between three and 12 months in the Milwaukee County House of Correction, about half were allowed to spend their days in the community on work release. Twenty more defendants received jail sentences, 11 with work-release privileges....

The severity of the sentences for five-time offenders in Milwaukee County varied widely depending on the judge.  Daniel Konkol sentenced five defendants on the charge, and all five went to prison. Dennis Moroney sentenced six out of nine defendants to prison. Moroney said he hopes incarceration will make drunken drivers think twice....  On the other hand, David Hansher gave probation in 11 of the 12 fifth-offense drunken-driving cases he heard.  Charles Kahn Jr. gave probation in five out of six cases.

As I have indicated in prior posts, I think drunk-driving sentences should start getting pretty tough starting with the second conviction, and I would be fine with a "three-strikes-you're-out" approach to this crime that contributes to the deaths of so many innocent persons and many related social harms.  But I find it both troubling and telling that defendants facing sentencing for their fifth conviction for drunk driving are still more likely to receive probation than a prison term.

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October 20, 2008 at 07:29 AM | Permalink


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While I agree with your assessment, booze, like death, is different. Unlike crack or other drugs, it has been used in Western culture for not just decades or centuries but actual millennia. There is a deep cultural integration that's hard to root out, as the history of the temperance movement in this country shows. Making the country dry created just as many problems as it solved.

On top of that we live in a car-fixated society. Many states where alcohol is the most serious problem are rural states where being able to drive is a necessity for modern living. Do you put the fifth offender in jail with all the costs that this involves, or do you let them loose and pray. I don't think the answer to that question is as obvious as it sounds. Certainly it shouldn't be obvious to anyone who has a genuine concern about the prison economy.

I could never defend a drunk driver. But I don't think the solution is lock them all up. It's a cultural thicket without any easy or obvious answers.

Posted by: Daniel | Oct 20, 2008 10:22:30 AM

Your assessment of dangerousness seems to depend primarily on the aggregate death statistics. But wouldn't a real assessment have to include a denominator as well?

If ten million people drive drunk every week, but only 250 deaths result, doesn't that suggest that it isn't that dangerous? (Relative to sober driving, or relative to other crimes?)

Posted by: Ted | Oct 20, 2008 11:11:04 AM

Fair points, Daniel, but lots of other drugs gace a long history in the US and around the world and yet we prohibit them completely and subject even some first offenders to severe sanctions. In addition, though I might find your car-based arguments moving for first or second offenders, at what point do we say "enough is enough"?

California and the feds and more than a few other jurisdictions are prepared to say "enough is enough" for a three-time loser. I have a very hard time making the argument for a five-time convict, especially given that the likelihood of recidivism seems very, very high.

Posted by: Doug B. | Oct 20, 2008 11:12:55 AM

In Virginia, the third DUI within 10 years is a felony with a mandatory minimum term (think it is 6 months, if 3 in five years, it is one year). Of course, the max is 5 years. The second DUI has mandatory minimum time. The approach of incarceration as a solution to repeat DUI might be misguided - chances are a person with multiple DUIs and especially one with an extra high alcohol content are alcoholics - jail and prison is not going to deter them - it will incapacitate them, but without addressing the underlying alcoholism, incarceration even for longer periods is not going to eliminate the problem of persistant DUI's. A boot camp/diversion center/alternative program with alcohol treatment might be a better alternative than prison. Putting an alcoholic in prison is not going to eliminate the problem of chronic alcoholicism just as putting a drug addict in prison does not solve the problem of drug addiction. Any incarceration for such people should focus on alcohol treatment. Most people with DUI's - even multiple DUI's are otherwise law abiding citizens - but they do have a drinking problem which puts them and others at risk.

As I've stated before on here, the reason why legislatures do not strictly punish DUI's like other crimes is because 1) because legislatures may have committed that crime themselves and 2) if they haven't personally drove under the influence of alcohol and gotten a DUI, they have a friend, spouse, child, sibling, parent, etc. who has and they can imagine someone of their social class commiting that time. Of course, legislatures probably should more fund alcohol treatment programs and alternatives to incaceration with alcoholic treatment. But, Professor, it seems rather weird that you argue for lower sentences for drug crimes but for heavier sentences for DUI's especially chronic DUI's when both drug crimes and chronic DUI's tend to have the same underlying cause which is addiction to substances.

Posted by: Zack | Oct 20, 2008 11:35:43 AM

I don't think DUI is a paticularly blameworthy crime. However I do see the risk habitual drunk drives poses to the public at large. It seems to me that there must be a better solution to the problem than extended incarceration. Ignition interlocks are a partial solution, but they do not deal with the risk that the driver will drive a non-equiped vehicle. Given how many DUI offenders ignore thier license suspensions and revocations, it seems unreasonable to expect strong compliance with an interlock requirement. It is definatly not reasonable to require universal interlocks. Really what is needed is a minimally restrictive method of confinement that removes the risk of the offender driving, but allows them to continue to be productive members of society.

Another problem with DUI enforcement is that collateral consequences of a conviction can be unreasonable. Consider a Doctor practicing in the hospital setting whose job may be at risk from a misdemeanor DUI conviction. For that matter any other proffesion where there is a hyper sensitivity to illegal conduct and/or substance abuse.

Posted by: Monty | Oct 20, 2008 12:16:14 PM

In Michigan, various aggravating factors, other than just prior offenses, increase the penalty for drinking and driving. They include having a minor in the vehicle, being in an accident involving personal injury, and being in a fatal accident, as well as having a prior record. Therefore, if I don't see any other aggravating circumstances, besides the past record, I assume the case involves a typical drunk-driving stop, for weaving, speeding, running off the road, etc. I'm not at all satisfied that those cases, without additional aggravating factors, usually deserve prison for repeat offenders. This is especially so in light of recent research I've seen, indicating that people sent to prison (in general, not just for drunk-driving) are more likely to repeat their crimes than people who aren't sent to prison. It's a damned-if-you-do, damned-if-you-don't world.

Posted by: Greg Jones | Oct 20, 2008 4:12:31 PM

Let's start with the premise.

Drunk drivers pose a much bigger day-to-day threat to average Americans than terrorists or sex offenders. As this official data spotlights, though alcohol-impaired driving fatalities declined in 2007, roughly 250 persons were killed each and every week in the US as a result of alcohol-impaired driving crashes. 1

1 Alcohol-impaired driving crashes are crashes that involve at least one driver or a motorcycle rider (operator) with a blood alcohol concentration (BAC) of .08 g/dL or above.

Does "as a result of alcohol-impaired driving crashes" mean the impaired drivers caused the crashes and if not for the impairment there would be no crashes?

Before we get all tough on crime, let's get the premises reliable. While I agree with the conclusion - that DUI is dangerous - the premise is suspect because it implies it may be more dangerous than it actually is if judged by "as a result."

Posted by: George | Oct 20, 2008 4:20:29 PM

When we started to screen persons upon admissions to Iowa prisons for alcohol and drug abuse we were surprised to discover that many of the offenders that were returning to prison on a repeat DUI charge had never been treated for alcohol abuse. That was also true for drug offenders (the number of returns ranged from one to ten for drug and DUI offenders).

Work release protects public safety as well as placing them in a minimum security prison and they are more likely to receive treatment in a community based facility that is still an option but evidently some judges or County Attorneys do not considered WR to be hash enough.

I think this is proof-by-demonstration that incarceration by itself is not an effective remedy for alcohol/drug abuse. Relapses are a common feature of alcohol/drug treatment as anyone who has tried to stop smoking or lose weight should know but that does not mean they do not work.

Posted by: John Neff | Oct 20, 2008 6:20:02 PM

You are absolutely right. Drunk drivers pose a great threat in society. Drinking while driving is a very serious crime and it should be dealt with appropriate punishment. A lot has been victimize by people by drunk drivers and many lives have been taken away. These little problems creates bigger problems unless they are solved immediately.

Posted by: alcohol detox | Apr 17, 2009 1:21:52 PM

I think we should start flagging drivers licenses/id's for repeat offenders. These ID's should be marked "No alcohol sale" and everyone (even 80 y/o grandma) needs to be carded. Can they obtain alcohol elsewhere? Of course. But it is one additional step in stopping these bastards.

Posted by: JEssica | Jun 18, 2009 6:40:59 PM

I think drunk driving sentences should start getting pretty tough starting with the second conviction, and I would be fine with a three strikes you're out approach to this crime that contributes to the deaths of so many innocent persons and many related social harms.


Posted by: teen alcohol treatment | Jul 14, 2009 9:24:59 PM

The problem with DUI is, it was such a social norm for eighty years is in the U.S. Many of us watched our parent's and grandparent's drive down the road with a drink in their hands.(most were pillars of the community)Then came the new laws about 1982 and suddenly DWI was public enemy number one.You cannot have a social norm that went on that long and expect everybody to change their ways.Most people are conditioned to drink and drive.Lawmakers wanna attack the offender's and not the problem itself.It is time for some other ideas than just tougher laws which obviously are not working.Such as life time interlocks for A fifth offence.A State funded ride home program were liquor companies are taxed for the ride.It is definitely time to think out of the box on this epidemic.

Posted by: Casey J P | Aug 1, 2009 2:04:35 AM

My father is incarcerated for turning over a tractor that he owned on his own private property. He had been drinking and is a chronic offender, but for God sakes it was on his own property. No one.......man, woman, or child were ever in any danger!! Anyway, he is back in prison over this, which I think is complete BS, and has heard of maybe some new sentencing laws or budget cuts that may be taking affect as we speak. Many prisoners where he is being held are being released early and no one knows why?! The reason he is so concerned is his mother. She was terminal and given 3 months to live when he went to prison. She has done well and even outlived Drs. time X3, but still he's worried and feels like he needs to be there to help her, being she is all alone with no one there with her. If anyone knows anything or can point me to the information I need I would greatly appreciate it help. Thank u do much! Also, my # is 4177183988 plz contact me so I can ease my fathers mind maybe and also know that my Grandmother will have the help she needs. <3

Posted by: Machelle | Feb 23, 2012 12:42:32 PM

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