Harris County: 43% of DWI offenders choose jail over probation

Probation or incarceration - which would you choose?

For 43% of DWI offenders in Harris County (Houston), incarceration turns out to be the preferred alternative, reports the Houston Chronicle ("Hit with DWI, many pick jail," Sept. 23):

The prosecutor offers a simple deal: Instead of going to trial, you can plead guilty to driving while intoxicated and get probation. That's an easy one, right?

For a surprising number of first-time DWI offenders in Harris County, however, the choice isn't so clear.

Facing the stiff costs and strict rules that come with probation, thousands of convicted drivers in recent years have decided spending time behind bars is the better option.

And in a county already struggling with crowded jails, that's a disturbing trend. Sentences can be short enough to mean losing only one weekend and a vacation day, but some end up behind bars as long as half a year.

"Because of the number of sanctions and what the defendants feel is the 'hassle factor,' many opt not to go on probation," said County Criminal Court at Law Judge Sherman Ross. "Financially, it's more expensive."

The choice of jail time also may mean fewer options for treating the alcohol problems that land many drivers there.

"Probation has become so onerous that there's no incentive to take it," said Bob Wessels, manager of the county criminal courts at law. "If we really want people in treatment, we aren't providing incentives."

Of the 6,685 DWI defendants in the county who accepted plea agreements last year, 2,894 (43 percent) took jail time rather than probation, Wessels said. In 2000, fewer than 10 percent (479 of 5,034) chose jail.

No wonder the Harris County Jail is overcrowded - the probation system is broken. Clearly many Harris County DWI defendants believe probation is actually tougher to complete than a jail sentence.

That's probably an accurate, rational analysis of the situation: As I've reported in the past, Harris County leads the state in revoked probationers. About half of probation revocations statewide occur for technical violations of rules, not because of a new crime. Texas has the longest probation terms in the country, and probationers have virtually no way to earn their way off supervision early through good behavior. Defendants can stay on probation as long as ten years.

I wonder if many Houston attorneys advise their clients to refuse probation, or if defendants have figured out these counterintuitive incentives through more grassroots, viral sources? Chronicle writer Brian Rogers quoted at least one local attorney who is actively giving such advice:

[Robert] Pelton, a defense attorney for 31 years, said he generally advises clients to take the jail time because probation can be so arduous, financially and otherwise. Probation for DWI carries another risk: If it's revoked, a judge can pile on even more jail time than originally would have been ordered.

This, added to the fact that Harris County has the highest per capita rate of probation revocations in Texas, means it may make more sense to burn some vacation time behind bars, Pelton said.

Those incentives are perverse. Too often our criminal justice system focuses on what "message" we're sending rather than real-world public policy outcomes. In this case, if the goal is to reduce the number of people who endanger the public by driving drunk, being "tough" on probationers has left Harris County with an overcrowded jail and DWI offenders less likely to receive treatment.

That is the most expensive, least beneficial result for these offenders - the worst possible outcome for the most money.