Reportage hyping DWI sidesteps biggest enforcement issues

The Dallas News is running a series of stories about criminal prosecutions in DWI death cases, the first article of which opened with this provocative but misleading statement:

You drink. You drive. You go to jail.

That's what the billboards say.

But in Dallas County, a leader in alcohol-fueled traffic deaths, you may spend little or no time behind bars – even if you kill someone. 

Note, the ads don't say, "You drink, you drive, you go to prison," so from the get-go it's clear that whoever wrote the lede was stretching to find (or generate) controversy. The News provides no evidence that police don't arrest drivers for intoxication manslaughter, so the claim that they spend "little or no time behind bars" is blatantly misleading. Indeed, further down in the story we learn that for "those drivers who are prosecuted and get probation, the only time they will spend behind bars is between 120 and 180 days in county jail."

The ads referenced neither say nor imply that every defendant will go to prison, and they refer to routine DWIs, not only death cases. Their message is the same one as the adage under Grits' title at the top of this page: "You might beat the rap but you won't beat the ride" for the Class B misdemeanor of driving while intoxicated. The billboards are NOT claiming everyone arrested for DWI will be convicted, nor that every alcohol related auto death will generate a prison sentences, particularly when there are mitigating factors or the harsher sentence is opposed by the victims' family.

By framing the issue this way, the writers set themselves up to supposedly uncover government hypocrisy or wrongdoing, but so far the articles haven't made that case persuasively. Instead, reporters found local prosecutors and judges defending their decisions on the grounds that they improve public safety.

Backers of tougher sentencing often are frustrated by the emphasis on treatment. Rehabilitation is laudable, they say, but offenders also should lose their liberty. Doing so might deter other drunken drivers.

Prosecutors, defense attorneys and judges say probation makes sense because intoxication manslaughter cases are incredibly difficult to prosecute.

Also, probationers are forced to get treatment they probably wouldn't receive in prison, and rehabilitation is less costly to taxpayers than punishment.

Most important, they say, a combination of treatment and probation-ordered rehabilitation makes the public safer.

"The reason it doesn't work to lock them up is, eventually they get out, and most times sooner rather than later," state District Judge Tracy Holmes said. "And when they get out, their addiction has progressed, and so they are more dangerous."

Prosecutors would like to send more intoxication manslaughter defendants to prison, but say the lack of substance abuse programs in Texas prisons forces them to pick between punishment and probation with rehabilitation. 

If harsh sentences "might deter" drunk drivers, why haven't they already done so for those with multiple past arrests? More than 5,500 prisoners are incarcerated at TDCJ right now for their third DWI or more. Not infrequently one even sees life sentences imposed for repeat DWI offenders. When somebody is arrested for the ninth time for DWI, that means the justice system has miserably failed the first eight times it intervened. Because of the volume of DWI cases, incapacitation is not a cost-effective, long-term means to solve the problem and it usually fails to address underlying risk factors before releasing the offender back to the streets.

Strangely, so far the series has failed to address the most serious crisis facing DWI enforcement in Texas today: Laws have become so tough that many defendants in non-death cases will no longer subject themselves to probation - which requires taking drug tests, participating in treatment and changing their lifestyle - instead choosing to sit out their time in jail to avoid changing their behavior. That's ironic because all the "tuff on crime" buffs  quoted in these articles bellyache constantly that more people don't do enough "hard" jail time, while many offenders would prefer that to strong probation that these articles portray as potentially too soft.

I'm also surprised not to see the Driver Responsibility surcharge featured prominently in these discussions. At a hearing of the Senate Criminal Justice Committee last month, David Hodges, Judicial Liaison for the Texas Center for the Judiciary, testified that the Driver Responsibility surcharge had caused DWI conviction rates to decline statewide in recent years relative to the number arrests. Citing Department of Public Safety data, Hodges said that in 2005 roughly 2/3 of DWI arrests resulted in conviction, but by 2009 that number had declined to 44%. Over the same period (2005-2009), he said, according to the Office of Court Administration, the number of pending, undisposed DWI cases increased from 100,000 to 125,000.

Most of that increase he attributed to more defendants taking cases to trial and more prosecutors, whose duty is to seek justice, not convictions, agreeing to plea down to lesser charges in order to avoid imposition of the unjust surcharge, which many defendants simply couldn't afford.

Bottom line, said Hodges, since the Driver Responsibility surcharge was implemented, DWI conviction rates have decreased every year, dismissal rates have increased every year, and the backlog of pending, undisposed cases has gone up 25%. Further, Hodges said that “tens of thousands of cases” per year were being informally reduced from DWI to lesser charges like reckless driving, public intoxication, blocking the highway, etc., to avoid having to apply the surcharge. The News stories mention with derision the practice of plea bargaining to these lesser charges, but failed to discuss the Driver Responsibility surcharge as a causal factor.

A staff editorial laments that "the cycle of blame, overreaction and unintended consequences keeps spinning," but this series' main purpose so far seems to be to contribute to that cycle by fomenting outrage where it's undeserved. From my perspective, anyway, so far I'm afraid these stories have merely elaborated rather than enlightened.