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July 27, 2011

ESPN analyst Jalen Rose (sort of) gets max jail sentence for drunk driving

This new AP article, headlined "Jalen Rose gets 20 days in jail for drunk driving," reports on a high-profile (and tough?) DWI sentencing in Michigan today.  Here are the details:

Jalen Rose was sentenced Wednesday to 20 days in jail for a March drunken-driving crash near Detroit, despite a recommendation that the ESPN analyst and former NBA player not serve jail time and the public support of several prominent figures, including Detroit's mayor.

When he pleaded guilty to driving while intoxicated in May, Rose told the judge he drank six martinis before crashing his SUV along a snowy road in West Bloomfield Township. He apologized in a brief statement after Wednesday's hearing. "I'm humbled, I'm embarrassed, and I'm very apologetic. I can assure everyone that nothing like this will ever happen again," he said.

One of his attorneys, Keith Davidson, wasn't so contrite, railing against the sentence handed down by 48th District Court Judge Kimberly Small.  "This was nothing less than an elected judge legislating from the bench," said Keith Davidson.  "This is a man who has given millions of dollars to charity, started schools around the world and worked endlessly for the community, yet her average sentence is 17 days, and she sentenced Mr. Rose to 20 days."

Small, who is known for coming down hard on drunken drivers, lectured the former University of Michigan star for 15 minutes before delivering her sentence.  "I don't think you have an alcohol problem, and I sincerely believe you when you say this will not happen again," she said.  "But there are issues of punishment and deterrence.  The one thing that people never want -- that they will hire expensive lawyers to avoid -- is jail time. That's why I believe it is the right punishment."...

When another of Rose's attorneys, James Burdick, pointed out that the probation department did not recommend jail, Small wasn't having any of it. "The people have hired me, not my probation department," the judge replied.

Rose's actual sentence is 92 days in jail and one year's probation, but Small suspended 72 days of the sentence.  The maximum penalty for the charge is 93 days, but Rose received credit for the night he spent in jail after the crash.

Rose is scheduled to begin serving his 20 days in jail on Tuesday, although Davison said they might appeal before then. "There were two crimes committed in this case.  The first was when Jalen got behind the wheel, and the second one was today," Davidson said.

As regular readers know, I generally fear that drunk driving sentence are often too low for effective deterrence of this potentially very harmful crime.  Thus, I am pleased this high-profile case involves some jail time for Rose.  And I find it quite troubling that Rose's attorney's response is to use silly rhetoric to attack a prison that his client can (and should) complete in a few weeks.

July 27, 2011 at 03:04 PM | Permalink


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why quite troubling? i can see poor taste, silly, or ineffective, but "quite troubling?" just because a sentence can be completed in a few weeks seems to me a weak reason not to challenge it. silly rhetoric is good for the papers, and getting in the paper is a fairly good way to inform the public.

Posted by: = | Jul 27, 2011 3:16:07 PM

It also seems like a great way to not have your argument taken as seriously if the appeals court judges happen to see it. Ogh wait, I remember seeing this guy, he was a nut then, I better take a closer look at everything he says"

Posted by: Soronel Haetir | Jul 27, 2011 3:29:15 PM

Calling a judge's sentencing decision "crime" seems over the top to me in this context, especially because the sentence is still relatively lenient and 75% of the imposed prison term was suspended. Some folks get years, decades or even life in prison for crimes like selling pot or downloading the wrong porn that do not obviously appear as dangerous as drunk driving.

I guess, =, it is not so much the lawyer's comments as it is the broader notion that this very harmful crime is so inconsequential that even a few weeks in jail is a "crime" from a defense lawyer's perspective. I find much more criminal the thousands of lives lost to drunk drivers every year, in part because we still do not take this crime as seriously as we should.

Posted by: Doug B. | Jul 27, 2011 3:33:26 PM

But it's not relatively lenient. That was the point. That judge, on average, sentences those convicted of DUI to 17 days. Rose got 92 (it is not lost on me that 72 of them were suspended). Sure, relative to a federal sentence, but that's apples and oranges. This crime was not harmful -- at least, going by what you reported, it's not. No one got hurt (forgive me if I missed that Rose got hurt). property was damaged. Sure, in the broader kaliedoscope, DUI offenses can end up injuring or killing people - but not here. And sentencing someone based upon what could have happened, instead of what did happen, though it's done, seems troubling to me. And even one unjustified day in prison is a crime. That'd be blackletter law.

Posted by: = | Jul 27, 2011 4:02:04 PM

Second post today. I don't see it as silly at all. Rose should not have to do any time as a mandatory sentence for first time DUI is absurd. It's yet another reason why the state and federal government is broke.

Posted by: Fed PD | Jul 27, 2011 4:35:31 PM

20 days for a first time .12 DUI is nuts.

Posted by: mmk | Jul 27, 2011 5:02:17 PM

I understand your point, =, but one can reasonably say "no one got hurt" for every pot dealing offense and lots of other offenses in which punishment is often measured in years, not days.

I understand the desire NOT to look at the broader picture, but all sentences concerned with deterring risky behavior is about trying to impact the broader picture. And, again, my key point is not so much that thihs is a "perfect" sentence, but rather that it is disturbing that, in a context in which more innocent people die every few months, a defense attorney views a relatively light sentence to be criminal.

Perhaps my real point is that lots of other sentences, especially for non-violent and non-risky crimes, are way too long if everyone believes that 20 days is beyond the pale here.

Posted by: Doug B. | Jul 27, 2011 5:59:01 PM

I am a criminal defense attorney, so never make me a judge. Driving a car is driving a 2-4,000 ton vehicle. If you do so while under the influence of alcohol, marijuana, or medicine (prescribed or not), you recklessly endanger me, my children, my friends, and their children. For this conduct, 30 days mandatory minimum is the proper sentence for the first offense. 6 months for the second offense. 2 years for the third offense; 10 years for the fourth offense; and 25 years for the fifth offense.

Posted by: anon | Jul 27, 2011 6:49:18 PM

Fed PD,

Are we at all sure that 17 day average does not typically include a larger suspended portion? To complain about that without knowing seems a bit silly to me.

Posted by: Soronel Haetir | Jul 27, 2011 6:51:09 PM

I concur with Doug B and anon. DUI grossly underpunished. The conduct has killed and maimed far more persons (and brought tragedy to countless families) than possessing porn, possessing and distributing dope. I fully concur with anon's schedule of punishment. Notwithstanding his criminal defense background, I VOTE FOR ANON for judge! Anon, come out and tell us who you really are so we can start the campaign.

Posted by: Barry from L.A. | Jul 27, 2011 6:55:51 PM

Reluctant as I am to have a criminal defense attorney be a judge, I agree with Doug B and join in the call by "Barry from L.A,": Those who drive DUI should go to jail as prescribed by Anon. VOTE FOR ANON for judge!!

Posted by: Dave from Oregon | Jul 27, 2011 7:01:18 PM

Plenty of people get hurt from pot dealers. some of those pot dealers carry weapons and use them.

You say it's disturbing. but prison is a bad place -- and it's not for every offender and it's not necessary for every offender. I understand how 20 days in prison might seem light, but it's prison. And by the way, 20 days for Rose is more than enough for a person of his means -- I imagine the threat of prison would have been enough to deter him.

Posted by: = | Jul 27, 2011 10:12:32 PM

The goal, =, is not to just deter Rose, but to deter others. Precisely because prison is a bad place, forcing even a prominent person like Rose to be there for a few weeks might make folks at the bars this weekend think about calling a taxi rather than take a chance to drive home with six drinks in their systems.

Also, =, saying some pot dealers carry weapons and use them is the same as saying some drunk drivers crash and kill people: you are making reference to the "broader kaliedoscope" to justify tough punishment. And that is all I think should be done to Rose and other DWI offenders: give 'em a little time so that they and so many others take drunk driving as seriously as pot dealing and other risky behavior.

Posted by: Doug B. | Jul 27, 2011 10:21:13 PM

I'm not sure who's comparing apples and oranges here. Just because our pot laws are stupid does not mean our DUI laws should be stupid. It also does not mean they are. Or that they aren't.

I don't like the judge's reference to "expensive" lawyers and wonder if a guy who blew a .12, seemed to plead guilty real quick, and had no criminal record really should spend that much time in jail. In fact I don't wonder, he shouldn't. But if that is the norm, that is the norm.

I don't like that Doug seems to imply that because Rose is a celebrity his example is a valuable deterrence opportunity. Of course, some people actually believe in general deterrence, so there's that.
And of course, there is the fact that he may have just got a tough judge. Or a lousy judge. Or both. That's what everyone else deals with all the time, so in that sense it would be refreshing. Unless he got screwed because he was famous. That would be unrefreshing. Ay, there's the rub.

Posted by: Matt | Jul 27, 2011 10:46:16 PM

I understand general deterrence. I understood it before I read your textbook several years ago and I still understand it. Prosecuting Rose serves as a general deterrent, too. He was prosecuted in Michigan, where he was a NCAA hero. I remember him playing in college, and I'm not from anywhere near Michigan. I suspect his college heroics carry a bit more cache in Michigan. So, for him to get prosecuted, I think serves as general deterrence too.

You argued that it can reasonably said no one got hurt for every pot dealing offense. That's just not true. That's not true at all. For you to suggest otherwise is disingenuous. My response that some pot dealers carry weapons and then use them was responding to your uninformed position. I have no interest in justifying tougher punishment. In fact, I made no reference to punishment in what I said about pot dealers. Please re-read what I wrote if you doubt that.

Michigan uses sentencing guidelines. I don't know if their state commission is like the USSC in that it studied offenses and penalties before the guidelines and then created guidelines based on those, but, let's make the huge leap and assume that they are. In that instance, the sentences of multiple offenders has already been considered in calculating the guidelines. To then sentence someone based upon what could have happened instead of what did happen, probably sends multiple messages, but the message I hear is that it doesn't matter what the defendant did, but what he could have done. That's even more offensive than sentencing someone on acquitted conduct.

I've no problem with Rose's attorney saying that Rose got screwed by the judge. That's part of his job. I'm no fan of people driving drunk -- I don't hate it as much as you seem to hate it, but it's a crime that is not taken seriously enough. I get it. However, if the practice is no jail for first time offenders who don't injure anyone, and a particular judge's practice is to impose jail, and in a particular instance, that judge imposes a higher sentence than her average against a defendant -- for no apparent reason -- then, it's no surprise that the defendant's attorney gets upset.

Posted by: = | Jul 27, 2011 11:52:56 PM

A more effective sentence is to put the car in jail for 30 days. See Vehicle-Based Enforcement Works in California Addressing Unlicensed Drivers.

And there is the benefit of it being less likely the accused will risk his/her employment by incarceration.

Posted by: Dude | Jul 28, 2011 12:56:56 AM

What Rose did, =, was engage in very risky behavior that is prohibited by law and that, in my view, should be subject to serious punishment in the hope of deterring others from engaging in such conduct. In my view and ALSO in the view of the Michigan legislature, a sentence of up to 3 months in jail is one way to try to deter this kind of very risky behavior. (I also favor ignition locks and car impounds, which may be preferable but do not appear to be authorized in Michigan.) The Judge here, who expressly referenced deterrence and that even a little jail time sends a potent message, ultimately gave Rose less than 3 weeks in jail for that reason (not "for no apparent reason").

Matt is right that just because our pot laws are stupid, our DUI laws should not follow suit. But I do not think using a short period of incarceration is a stupid way to try to prevent folks from the very risky behavior of DUI. (I personally do not see merely selling a small bag of weed to be very risky behavior; when the seller brings/uses a gun, the risks go up, as should the punishment).

For another comparison of how we treat risky behavior, let's consider another celebrity sentencing: Plaxico Burress. He got 2 YEARS, not merely 20 days, in prison for the risky behavior of carrying a gun in public (and shooting himself). Isn't that a much more severe example of punishment based on what he could have done? Or how about federal felon-in-possession crimes where the mere fact of owning a gun can result in up to 10 YEARS in prison based merely on mere possession of an object.

My point throughout is that in lots of other criminal justice settings, society punishes risky behavior much more severely (in my view, much too severely), to the apparent hope of preventing others from engaging in this behavior. But here society does not seem, in my opinion, to be willing to punish risky behavior seriously enough. For that reason, I find Rose's sentence refreshing and still find troubling that his lawyer is so eager to call criminal the judge's lawful (and, in my view, sound) sentencing decision.

Posted by: Doug B. | Jul 28, 2011 8:28:08 AM

Rose violated the law and put others at risk of serious injury - I think I acknowledged that already.

What we don't agree on is perspective. I think prison - in the abstract - is serious punishment. I interpret you to think only that prison is serious punishment if it's subjectively long in duration.

The judge imposed a sentence higher than her average for no apparent reason. That is what I wrote. She imposed jail to punish and for general deterrence (I assume since she acknowledged a belief that specific deterrence was not applicable).

The other point you are missing is that two-fold: the judge sentenced Rose to a day less than the max, and it was 92 days. I don't know MI law, but, in what I bet is a tougher jx, the US, a stat max sentence is unusual, an upward variance, and requires justification. I also bet the MI sentencing commission set guidelines less than 92 days for DUI. As to the second part, practically, the sentence is 20 days if he does not screw up, but, if he does sufficiently, and that as I know you know, can be a technical violation, he can be put in jail for the remaining 72 days. So it is not a short sentence.

Again, I've no problem with the attorney's advocacy strategy. And I feel no refreshment in his sentence.

Posted by: = | Jul 28, 2011 11:02:23 AM

The apparent reason, =, was to send an extra tough message in a high-profile DUI case. You may not like this reason, but it is "apparent" based merely on the quotes in this press report. Your point about this being sort of a max sentence is reasonable, but in the end I think you disagree with the view that a prison sentence in this context has extra general deterrence value to justify going beyond the norms. The 2d circuit has upheld such a rationale for an extra 6 month in the post-Booker federal system, and I think it silly and misguided to call this rationale "criminal.". Indeed, your stated concerns show Rose's sharp sentence is having an impact.

Like Kant, you may think it unjust for Rose to be used as a means to broader ends. But because I value utilitarian approaches to punishment more than what feels just to different persons, I welcome an effort to make a big statement about DUI through a few weeks hardship to a rich and famous lawbreaker.

Posted by: Doug B. | Jul 28, 2011 7:51:17 PM

sorry doug but i think the same if the judge wants to "send a message" start an AD campaign! you don't get to use humans for you messages! last time i looked a judge is "required" to judge the case in front of them on it's OWN MERRITS! doing ANYTHING else is in fact CRIMINAL!

Posted by: rodsmith | Jul 29, 2011 12:15:48 AM

I think Bentham is quite relevant in a justification or excuse scenario -- I think the judge was fairly clear her sentence was less about its utilitarian value than about incapacitation -- but this conversation has moved a bit away from what I thought was too strong of a reaction to an advocate's characterization of a sentence. You've made your point. You think it was a silly characterization, and, in the context of the dangers of DUI, misguided. And I am satisfied that a reaction I thought was described too dramatically, was not. I on the other hand, am not bothered by it. I was just curious about your reaction.

Posted by: = | Jul 29, 2011 10:58:33 AM

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