Friday, November 03, 2006

Life for multiple DWIs?

Texas DAs seem to think its fine, and exchange advice how to procedurally achieve the sentence on the user forum on their website. In the case discussed, the defendant had been charged with DWI 11 times, says the prosecutor, and had two prior DWI convictions, but the punishments inflicted didn't stop the behavior. Would shaming have been more effective? UPDATE: Doc Berman rounds up more links on shaming.


Anonymous said...

Shaming would be a start, though I doubt it would stop it all together. Having the driver's photo in the local newspaper as well as the DMN might work, at least other residents would be aware that the person should not be driving and they could allert the police if they saw the person behind the wheel of a vehicle.
You do need a big mind-shift though. It's taken the past 20 years here in the UK for attitudes to drinking and driving to change, and the government have used increasingly graphic TV ads to get the message across. Does American TV show ads like that?
You also need to offer a replacement for taking your own vehicle when you go out for a drink; reliable and cheap taxis and public transport are needed.

Gritsforbreakfast said...

We used to have ads like that, but I don't see them much anymore. I think the feds would rather finance anti-drug commercials.

As for "reliable and cheap taxis and public transport are needed."

Ah! - Silly wench, public ed and cheap public transport? That'd actually be sensible and REDUCE drunk driving. You're obviously missing the point of this, which is to incarcerate the maximum number of folks for the longest time. Keep your eye on the ball, please. ;)

Anonymous said...

Nothing will "stop it altogether." People like to drink. Lots of people. Life for DWI is the most ridiculous example of Nanny State Big Government Liberalism I've ever heard of. Why should I pay for that guy's room, board and healthcare for life? Screw the drunks, I don't want that.

That said, I don't think shaming works either. They already put drunks name in the newspsper and people still drink. Hell, the people whose names they print still drink.

What we want is for the drunks to dry out and quit drinking, right? What does that have to do with my taxes providing for their every need for the rest of their life?

Gritsforbreakfast said...

On the DA's forum, Williamson County DA John Bradley responds to this post:

"Huh? Isn't getting a life sentence for being stupid enough to drive drunk that often embarrassing?"

He obviously misses the point that anonymous made. Bradley should be embarrassed for costing the taxpayers that much to incarcerate those even he sees as merely "stupid." Treating them the same as the intentionally violent by locking them up forever doesn't make practical sense nor make the public safer - especially if the truly violent must be released to make room for them.

Anonymous said...

Grits wrote: <<< Ah! - Silly wench, public ed and cheap public transport? That'd actually be sensible and REDUCE drunk driving. You're obviously missing the point of this, which is to incarcerate the maximum number of folks for the longest time. Keep your eye on the ball, please. ;)>>>

LOL yeah, silly me. I've just been explaining to my teenage daughter that while we are in Dallas next month, she cant just get a bus from her grandma-to-be's house in Grand Prairie into the city like she does here. Her reply was "I thought we were going to America, not India!"

Though actually, your taxis arent too far off our rates here.

But no, you're right, TDCJ needs you... and you... and you....

Anonymous said...

800 lb gorilla wrote: <<< What we need is a Botany Bay - to deport all the "neer do wells" out of our sight. >>>

We tried that one years ago.... its called Australia now I believe, and doing rather well too ;)

One more thing Grits, while I'm here; the TRUELY violent shouldnt be released early, that makes no sense at all, but inmates who are incarcerated for a violent crime but who have shown no other violent tendencies should be at least considered for parole along with everyone else. Doesnt mean they have to get it, but some could be returned to society sooner than they currently might be.

Gritsforbreakfast said...

Phillip Ray, the prosecutor who posted the original item, replied thusly to this post on the prosecutors' forum:

"Either the host does not understand my original question or is misleading his audience, intentionally.

My original question obviously related to whether or not the evidence at hand could be used to enhance the punishment to a larger exposure. I understand that I may have confused him as I made a mistake originally (since corrected) in describing the currently indicted punishment range. Under the current indictment, the defendant is facing 2-20, but it does not take in to account the felony history of this specific defendant.

Under the new indictment, the defendant will face 25-99 or life and be held accountable for all of his prevous history.

JB, your analogy regarding firing a pistol is apropos for these circumstances. At least 11 times in the past, the defendant has placed citizens of Texas in grave danger. We all know that for each time a defendant is caught that defendant evaded dectection multiple times. After all the possible probation courses and education required, this person continues to willfully disregard every other person in his path and continue to put the bottle to his head, pulling the trigger on a roadside russian roulette.

People like this fried eggs and hominy fella' hack me off. With Felony Murder being rightfully charged across the Great State, this Denver Omlette Armchair prosecutor is second guessing my work because he's concerned that "[t]reating them the same as the intentionally violent by locking them up forever doesn't make practical sense nor make the public safer - especially if the truly violent must be released to make room for them".

My retort:
1. The defendant has a multitude of convictions for DWI, currently we are using two FELONY convictions as our underlying offenses. Yet Eggs Benedict implies this isn't an 'intentionally violent' person. This Sisyphean approach to personal responsibility is a flagrant disregard for understanding crime and punishment. If a defendant continues to commit a crime regardless of punishment, then the subsequent dealings must increase the consequences. Without a logical progression of punitive measures the system becomes arbitrary.

2. The other speakers reference the 'hosting' of the defendant by the Great State implying that their tax dollars should be spent on more deserving defendants. Every single DWI contact was a potential homicide case. Yet the speakers want to apply financial concerns to the standard of justice thereby quantifying potential deaths in a cost benefit analysis. We're charged with seeking justice, not managing expenses. Confinement is protection. As long as the defendant is incarcertated, he's not contributing the mortal danger associated with Texas Highways. This approach directly addresses, "mak[ing] the public safer" regardless of the intellectual biscuit's point of view.

3. How many times must the defedant be caught before the actions of the defendant can be considered intentional? Is the act only violent if fate places a victim in his path?

4. It amazes me that the discussion centers around the maximum on the range. All I'm advocating is allowing the jury or the judge to assess punisshment in a range appropriate to the defendant's historical disregard for the law. Perhaps this obsession with 'life' applies because even the speaker understands that most finders of fact will consider a maximum sentence when there are 11 prior crimes.

Or maybe he's earned it."

Grits' reply:

Awwwww, poor Mr. Ray. He's SOOOOO misunderstood. Problem, is, other prosecutors on that string boasted about getting 99 years on a DWI or advised him to settle for no less than 60 years. Go read it for yourself. He doesn't get to now claim we shouldn't focus on the high end of the punishment range - you can be sure he'll be pushing for it.

He says, "every DWI was a potential homicide case." Another way to look at that, though, is that every "potential" homicide case wasn't actually one. Every time I go out in my car it's a potential manslaughter if I hit someone and kill them ... potentially ... if. I'm sorry, but that's substantively different from the case Doc Berman thought was a candidate for shaming where the offender actually killed somebody.

I don't think it misrepresents Mr. Ray's position nor his fellow proscutors to take from that discussion that if they could get a jury to agree to life, most prosecturos on that forum would gladly take it and boast that it set an example.

"Confinement is protection" is an especially facile view, though I'm certain it helps overzealous prosecutors feel better about themselves to think so. If 60-99 in prison is the most efficient way DAs can think of to keep drunks in line, no wonder anonymous thinks they're "Nanny-State" types - they really are. If he can't think of any better options, maybe next session Mr. Ray and the prosecutors shouldn't oppose stronger probation or treatment that might get the guy off the bottle.

The name calling was especially classy, though, didn't you think?

Anonymous said...

If confinement is protection, then shouldnt Texas lock up every offender no matter what the crime, for life without parole? The recidivism rate would drop through the floor then ~ something to really be proud of huh?


And I wonder how many times that guy has driven home at night after having a sip in his office after a long day....

Anonymous said...

Philip Ray writes: "If a defendant continues to commit a crime regardless of punishment, then the subsequent dealings must increase the consequences. Without a logical progression of punitive measures the system becomes arbitrary."

It seems to me that if a defendant continues to commit a crime "regardless" of punishment, especially in cases of physical addiction as with alcohol or drugs, increasing punishments is irrational and itself arbitrary, precisely because you know up front it won't help, except as the MOST expensive way to keep him from driving.

Sorry, man. I don't want to pay for this guy for life just so you can brag about how tough you are in your next campaign commercial.

This is the drug war mentality, just aimed at booze. Send more people away for longer and shut your eyes to the fact that addiction is more effectively treated as a medical instead of a criminal concern.

That DA's a piece of work - he sure doesn't like us dern outsiders talking about his cases, does he? Where is Potter County, anyway?

Gritsforbreakfast said...

"Where is Potter County, anyway?"

In the Panhandle: Amarillo.

Anonymous said...

First and foremost, cheers to Scott Henson for sending me an email and letting me know he responded here.

I didn't take personal offense to your point of view or your expression of your position. It's just a frustrating set of circumstances. I like that you are paying attention to our postings; I think it keeps us honest. I get responses from time to time regarding different topics.

I think it is helpful for prosecutors to remember that while we approach each topic from a collective mindset, there is always an external voice that sees and hears our work with a critical perspective.

I did have a bit of fun with your 'name' joking around with my colleagues. I'm pleased to see you didn't take offense. Cheers for that as well.

Here's the problem that we prosecutors face. I'll change the facts some from my case as the charges are still pending, then leave it up to you all to comment and make suggestions.

Imagine a defendant who has driven while intoxicated and been caught in the act no fewer than 11 times. Throughout the past two decades, he's been sentenced to over ten years probation from various counties within the State. Each time, while on probation, the defendant has his driver's license suspended, was prohibited from consuming alcohol, offered counselling, required to attend DWI education courses (Basic, repeat, and habitual type courses) and is required to attend AA meetings and complete a drug and alcohol evaluation as a part of supervision. When the defendant fails to participate in every opportunity for assistance, what should the State of Texas do?

Generally, probation is revoked based on non-compliance and sanctions are applied. Often that can be short stays in jail as well as more frequent supervision appointments and other requirements as determined by the judge.

When that fails, the defendant goes to jail. If the defendant is on felony supervision, the defendant has all the same sets of opportunities again under a more restrictive supervision. When that supervision fails, the defendant goes to prison.

If the defendant is discharged from prison and commits another felony, the defendant is (generally speaking) no longer eligible for probation. (Special circumstances may apply depending upon particularities.)

First offense of DWI in Texas is a class B misdemanor. Second offense is a Class A. Third offense is a 3rd degree felony.

A defendant can receive probation (And often does each time) under any or all of those charges.

Once you've been convicted of a felony charge in Texas you begin building a resume for eligibility to be designated as a habitual offender.

So, now that the defendant has been sentenced to prison, then gets out and reoffends, what do we do? We recommend a harsher sentence. Once a defendant has committed a felony, served time, then discharged, commits another felony, serves time and is discharged then commits a new offense, that defendant is considered a habitual offender. (Texas' version of a 3rd strike rule) and is eligible for a punishment range of 25-99 yrs or life.

So, with a drunk who has 11 or more charges of DWI with at least 4 of them being felony cases, wouldn't you want the jury to be able to consider all of those charges when setting that defendant's punishment?

AND yes, under those circumstances if the defendant won't admit his guilt as a part of a plea to a lesser punishment, I'd seek and request a verdict on the upper end of the punishment range if the defendant chose to fight the new charges instead of accepting responsibility. I don't think that is an unreasonable approach for this particular type defendant. Although, this post started by my asking other prosecutors what they thought regarding this particular application of the habitual offender rule. You made the global statement that 60+ years is a way to keep drunks in line. I disagree with that assesment. First time drunks begin as a class B misdemeanor (0-6 months in jail, most get probation.) I look at the progression of the drunk's history. Someone who commits the crime over 11 times however is a danger. It is an injustice to lump an 11 time offender in with a first time young person who makes a very bad choice. Your flippant response regarding punishment does just that.

If I don't, that man will kill or maim someone. That victim will ask their prosecutor why someone didn't stop him. Why didn't someone protect Texas citizens from him?

What would you rather we prosocuters do?

In response to other posters:

Anon: I don't run for election, I'm an assistant DA assigned to a felony court. Also, I don't mind you questioning our decisions. I think that keeps me on my toes. I need to be held responsible for my decisions. I respect you as a person to whom I am bound by oath to serve. I'm not advocating intolerance per se. I'm suggesting that when treatment and supervision fail time and time again, some other response is needed. The Penal code outlines three objectives to "insure the public safety: Deterrent, rehabilitation, and punishment. At some point, prior to the 12th charge for the same offense, punishment and protection must be considered. Also, I don't look at it as paying the defendant's room and board. I look at it as keeping him from running over my sister, my friends, their children, and you.

Sunray: Consuming an alcoholic beverage and driving is not illegal. Driving while you've lost the normal use of your mental or physical faculties is illegal. And no, I don't have a drink after work and then drive home.

Thank you all for your opinions. I hope that my intonations in text were not taken offensively. I meant no judgment upon your expressions. Sometimes tone of voice is lost in the written word. I hope that you read through my thoughts and add an understanding tone to them as you respond. This is a very difficult and emotional subject that strikes home for many many people in our State.

My original writings were meant for the collegiate surroundings of the TDCAA forums where we communicate with each other in a familiar manner. I'm also keeping my writing a little fun by playing with Mr. Henson's blog title. I meant it to come a bit across as a rant and added "flavor" to keep the writing interesting. If my writing style for that forum has offended you, I apologize.

Anonymous said...

A few corrections:

I began a sentence, "if I dont," it should read "If I don't follow that philosophy,"

Also, I began a quote from the penal code and then left the quote open ended. The sentence should read "insure the public safety:" deterrence, rehabilitation, and punishment.

Anonymous said...

Mr Ray, it's good to see your response. I apologise for my flippant remarks, although there are plenty of people in your position who do have a drink and then drive home ~ the only 'safe' level of blood-alcohol is zero.

I know this isnt Utopia, so my next suggestion isnt going to get off the ground, but accepting someone is an alcoholic and offering them punishment and treatment just isnt enough. People with addictions do not have the same rational train of thought as those who have no addiction. If you get drunk one time and do something illegal, on sobering up you would be able to make changes in your WHOLE life to try and prevent it happening again, probably with the help of the authorities and/or family & friends. If you are an alcoholic, your thoughts on changing your life only last as long as the time between drinks, and in the meantime, your family and friends stay the same, your circumstances stay the same (or get worse if you go to jail or prison for a while). Addiction is a very complex issue and it's not stopped by putting someone on probation, or even sending them to a treatment hostel for 6 months - if they are then going to return to the life they had before.

I'm kinda going round in circles with this, because I'm advocating removing someone from their current situation that enables them to continue drinking the way they do.... but not necesarrily sending them to jail or prison where they cease completely to be a productive member of society. Sending the individual to a treatment programme might work, but sending his/her family as well might work better.

And in a real Utopia, perhaps dry-towns would be an option? Communities where alcohol was not permitted at all. I'm not saying the whole state or country should be that way, but perhaps if there were places where people could remove themselves from the means to turn to drink, they would be better able to find other ways to deal with their triggers instead.

But the most logical way, to my mind, is for the legislators to communicate with the car manufacturers and come up with cars that require you to have a breath-test before they will start. I'm sure the technology is available. I guess it just depends on how serious we are in tackling this, because the existing way obviously isnt working.

Anonymous said...

Actually, Sunray, we're trying.

Probation can require that an ignition interlock be installed on the car of the defendant. But, the onus is upon the probationer to properly use the device.

Many times we see a probationer get someone else to blow in the tube to start the car for the drunk. Many times we see the drunk not comply with the order and drive someone else's car. (Their wife's, their girlfriends, whatever) Sometimes, they have more than one vehicle.

So, we suspend their license. They drive anyway.

So we require them to attend CRTC or SAFPF. Each program lasts up to a year where the defendant is locked in a treatment facility. Under SAFPF they essentially stay in a jail/prison facility that is designed for people with abuse problems. SAFPF is a dry out and talk about it program.

CRTC functions similarly, but the patient/defendant can earn the right to work outside the facility during the day to work towards recovery.

Each of these programs can be suggested by the prosecution but unless the defendant agrees and accepts the program, we have no authority to mandate attendance. We can move to revoke the probation based on non-compliance and recommend to the judge these programs as alternate sanctions, but the decision lies with the judge, not with the prosecution.

So, yes. The legislature is addressing the ideas you have. They have given us tools to assist in the reformation of addicts, but that reformation must come from within. An addict has to WANT to not be an addict before any of these ideas can be effective.

In the case I brought up with the other prosecutors, the defendant has demonstrated a complete and total lack of interest in any sort of rehabilitation whatsoever. Incarceration is all we have left.

I'm out of tools and options.

Anonymous said...

Oh, and with regard to Dallas, they have a bus system. It's not widely used as other major cities, but they're expanding through the 'light rail' that connects major parts of the city.

Gritsforbreakfast said...

Thanks for all the replies, especially Mr. Ray, the prosecutor. I've got to run and want to hear what others say, anyway, but I have to mention I find it hard to listen to prosecutors complaining about having "no options" when your brethren (led by your friend JB) bitterly opposed strengthening probation last session.

The contradiction reminds me of a favorite quote from Milton's Paradise Lost, "They who have put out the people's eyes, reproach them for their blindness." Prosecutors kill stronger probation then complain that probation isn't strong enough so they have no choice but incarcerate.

The progression of ever-longer incarceration obviously hasn't worked here, and for many people won't, can't, precisely because addiction is a medical, not always a moral crisis. It's both cheaper and more effective to treat it as such. Best,

Anonymous said...

Grits, I don't think you misunderstood the prosecutors string. Mr. Ray was asking about enhancing to a punishment range, but these were the replies he got:

"it is not overreaching to habitualize a felony DWI defendant." That means 25-99.

"We have had juries give life for DWI."

"We were able to obtain a 99 year verdict on an 8th DWI here in Parker County in August."

Then Mr. Ray himself responded, "I tend to chomp at the bit when it comes to enhancing cases. I am interested in hearing other venue's perspective on lifetime drunks. As a jury member, if I had all the information I'm looking at now, I'd hold out for 60+ and nothing left."

So what I take from this is a) that quite a few Texas prosecutors routinely seek and get sentences of 60-99 years or life for habitualized felony DWI defendants, and b) that Mr. Ray himself thinks a 60 year sentence is justified in this case, and in many cases, and typically "chomps at the bit" to boost the sentence.

As for seeking justice - at 25-99 years this two-bit fool gets a minimum four times the sentence of Andrew Fastow at Enron. Who did more harm? How much extra justice do taxpayers get for that extra 19-93 years this guy might end up with?

Anonymous said...

interesting debate you have going here. i am a licensed chemical dependency counselor of 20 years who has worked in CRTC, SAFPF, state jail with a therapeutic community, free standing inpatient, outpatient, crimianl justice based, mhmr based, hospital based, pretty much you name it. my question is, what the hell is a "dry out and talk about it" program?

Anonymous said...

Anonymous: I think that is an accurate assessment of the conversations we were having. I hope that you understand my position, even though we disagree.

Anonymous said...

Anon 2: "Dry out and talk about it" was an over simplification explanation given to me by a probation officer in another county. She was trying to convey to me the difference between SAFPF and other programs.

Though I may be misreading your post, your tone sounds rather confrontational. Often, over-simplifying catch-phrases fail to capture important aspects of programs. If the phrase is offensive, I didn't intend it to be a commentary on the work. I re-used it because it made sense to me as a distiction between the facility that is lockdown and a facility that allows a patient/defendant more freedoms during treatment.

I do not have your professional experience with these programs that would qualify me to speak any further on the subject.

Gritsforbreakfast said...

Larry Taylor who runs the excellent DUI Blog tried to add these comments today to this post, but informs me Blogger's server was down. He emailed them to me instead and I present them here en toto. Larry wrote:

This prosecutor is obviously focused entirely on a hunger to punish, not protecting the public. As I've commented a number of times on DUIblog, incarceration of people with a genetic disease is pointless -- and the stable DUI "related" fatality statistics for the past 10 years in the face of ever-harsher penalties and constitutional violations bears this out. It is better to rehabilitate the person -- teach him to control his disease -- than to throw him in jail for six months (jails which are already bursting at the seams) only to have him get out and, hours later, drive to a bar.

I find the reply from another prosecutor interesting:

"Does your reluctance come from thinking he just has a drinking problem? There is nothing in the disease of alcoholism that forces a person to drive after achieving a drunken state. The decision to drive, especially after 11 prior convictions, is a selfish decision to endanger innocent people.

"If this guy made a habit of going to the town square and shooting a handgun in the air, would you feel the same reluctance to prosecute with the maximum punishment?"

Of course, he ignores the Catch-22: the decision to drive is made by an intoxicated person. And the intoxication is caused by the (genetic) disease of alcoholism. In my view, it would be like saying that a person with a mental disease -- legally insane or otherwise -- makes a "selfish decision to endanger innocent people" when he acts in a dangerously irrational manner.

And life in prison for shooting a handgun in the air?


BTW, just so you know, Larry, they haven't always been so uptight about shooting your gun in the air. Within my adult lifetime it was a routine way, for example, that poor folks celebrated the New Year, firing a handgun into the air at midnight, but recently they've been cracking down. That was actually sort of a culture shock moment for me when I moved into my current neighborhood 16 years ago. Nothing had quite prepared me for that, nor the cavalier way average people viewed it. Best,

Anonymous said...

Great thinking. Let's parole a bunch of murderers, kidnappers and thugs to make room for the guy with three martinis at lunch. But it's not their job to think of costs and benefits. What a brilliant lot those DAs are!

60 years! 99! Life! For DUI! Is it me or does it sound like the damn Soviets shipping people off to the gulags? I swear to God I used to think it was Communists who did stuff like this, and keeping it from happening here was the reason the US sent our soldiers out in the world to protect American freedom. Reading that DA conversation made me very sad. How did we get to this point?

Anonymous said...

As a Texan and a mommy I am dang proud that someone (insert all zealous DAS here) wants to protect us. If the drunk is too sick to stop himself from drinking or driving then I am happy to pay my taxes and keep him from running into or over some other innocent and or productive citizen. Too many mommies, daddies and babies are dieing as a result of the drunks' uncontrollable illness. I happily send my money to control them. It is a small price to pay to watch my children play. KUDOS to all DAs! PROTECT! PROTECT! PROTECT!

Gritsforbreakfast said...

Texas mommy, I understand the sentiment, but it fails to solve the problem. It's a lot cheaper AND more effective at preventing drunk driving to give treatment, which Texas DOESN'T, on the first, second, third, or fourth DWI than a life sentence on the 5th.

Your willingness to pay any price for more incarceration rewards law enforcement's failures and perpetuates a destructive cycle. I guess it sounds good, though, when you say it as a slogan like that. Best,

Anonymous said...

I have done some checking and I have learned that regular probation orders for DWI 1st & DWI 2nd normally have the following requirements that look alot like treatment to me: attendance at AA no less than 2 times per week, drug and alcohol awareness course, DWI education program, DWI Victim Impact panel, substance abuse evaluation and treatment as prescribed by mental health professional. Any local defense attorney will go over all the things that a DWI defendant will be required to do. These probation orders are on file in the County Clerk's office and are public record. You should go review the files and see for yourself all of the treatment programs that these offenders are ordered to participate in. Usually, at Motion to Revoke hearings the testimony reveals that the defendant has failed to comply with most of the treatment programs ordered and thus has continued to drink. I think the point that the DAs were trying to make is that at some point society (mommies like me) is going to say "STOP THIS GUY FROM KILLING MY KID!" The only way that they can insure that the habitual DWI offender stops for good is to make him incapable of accessing any vehicle... JAIL. So, I thank them, praise them, and support them.

Gritsforbreakfast said...

Texas mommy, I just listended to the parole board yesterday telling the Lege that NONE of the 5,500 DWI offenders in Texas prison today are getting treatment. TDCJ is asking for money for DWI treatment beds.

The probation system is broken, and that's another matter. POs don't even do home visits because caseloads are too high. Supervision of everyone, not just DWI offenders, is weak and ineffective, and instead of using resources to force participation in programs, people are just revoked. We basically need more aggressive supervision of high-risk probationers and DWI courts comparable to drug courts, IMO.

DAs like weak probation. They rarely have to try a case because they plea them out, then if the defendant get 10 years probation they can revoke for technicals anywhere down the line. It's less work for the DA and the courts, but it's also less likely to get the drunk to clean up their lives.

I'll say this, thoguh: At least you're honest enough about it all to say "raise my taxes". You'll rarely hear the DAs say that aloud at the capitol, even though it's the net result of all their proposals. best,