Iii. Specific sanctions and remedies

Sanctioning the Offender

Jail

The number of DWI offenders under some form of correctional supervision almost doubled between 1986 and 1997 (Maruschak, 1999). In the past 15 years, most States have adopted some form of mandatory jail sentences for misdemeanor DWI and prison sentences for felony DWI. The effects of these laws have been hotly debated, and the evidence from studies of incarceration as a specific and general deterrent to DWI is mixed. In general, the available evidence suggests that as a specific deterrent, jail terms are extremely costly and no more effective in reducing DWI recidivism among either first-time or repeat offenders than are other sanctions (Hagen, 1978; Homel, 1981; Salzberg and Paulsrude, 1984; Jones, Joksch, Lacey, and Schmidt, 1988; (Mann, Vingilis, Gavin, Adlaf, and Anglin, 1991; Ross, 1991; Martin, Annan, and Forst, 1993). Nichols and Ross (1989) reviewed available studies of the effect of incarceration on DWI recidivism rates for the Surgeon General’s Workshop on Drunk Driving. They found six studies that reported no reduction in recidivism, one that found no difference in recidivism between a special DWI facility and a traditional prison, and one that found reduced recidivism for first-time offenders sentenced to 48 hours in jail. Further, traffic deaths decreased in Norway and Sweden once both countries abandoned mandatory jail sentences for convicted impaired drivers (Ross and Klette, 1995).

There are some indications that the short-term effect of jail as a general deterrent depends on the extent of public awareness, the risk of incarceration, and the size of the community. These short-term effects are initially strong following public announcement of a sanction, but often dissipate over a period of about 3 years. Some studies have found that the use of 2-day jail sentences had a general deterrent effect for first-time offenders (Falkowski, 1984; Jones et al., 1988; Zador, Lund, Fields, and Weinberg, 1988); others concluded that jail terms were ineffective (Ross, McCleary, and LaFree, 1990). Researchers have also noted, however, that mandatory jail sentences tended to negatively affect the court operations and the correctional process by increasing the demand for jury trials, plea-bargaining, and jail crowding (NHTSA, 1986; Voas and Lacey, 1990). Consequently, in some jurisdictions the severity of the sanction was reduced, and swiftness was retarded; inconsistency in implementation raised equity questions.

Additional questions arise regarding sentence severity, or the appropriate length of a jail sentence. For example, 2 days in jail may have a specific deterrent effect and may be more effective than a 2-week sentence in reducing recidivism for first-time offenders (Wheeler and Hissong, 1988). In one study, lengthy periods of incarceration were actually associated with higher recidivism (Mann et al., 1991). This finding may be due to judges giving longer jail sentences to those offenders whom they regard as most likely to recidivate, rather than an indication of the negative effects of more severe penalties.

Based on these findings, it has been suggested that a weekend in jail may be useful for first-time offenders, for whom a “taste of punishment” may be an effective deterrent (Jones et al., 1988; Mayhew and Simpson, 1991). However, since many convicted impaired drivers, particularly repeat offenders, have severe life-stress problems, may be alcohol-dependent, and may have additional health problems, long jail terms are unlikely to resolve their problems and may even exacerbate them (Homel, 1981). For such individuals, incarceration, which effectively incapacitates them as a threat to public safety, but only for the period they are incarcerated, may be most effective as a complement to treatment-oriented measures (Jones and Lacey, 1991).

Weekend Intervention

A weekend intervention program (WIP) is designed to evaluate alcohol and other drug abuse and to create an individualized treatment plan for each offender while housing them away from their normal domicile (a “low-level” form of incarceration). For low-risk offenders, exposure to the WIP evaluation process itself may be sufficient treatment. High-risk offenders are referred to longer-term, more intensive programs. Repeat offenders assigned to WIP have lower recidivism rates than do jailed offenders or those given suspended sentences and fines (Siegal, 1985). An example of a WIP is the Wright State University WIP in Ohio (Siegal, 1987). Programs based on the WIP have been used in some additional locations including, for example, Augusta, Maine; Altoona, Pennsylvania; Gillette, Wyoming; and throughout the State of Missouri.

Dedicated Detention/Special DWI Facilities

Confinement in detention facilities dedicated to DWI offenders incapacitates the high-risk offender and provides supervised rehabilitation services, such as:

• Treatment for alcohol abuse and alcoholism
• DWI driver education
• Vocational training, sometimes in the context of work release
• Individual counseling (Timken, Packard, Wells-Parker, and Bogue, 1995)

Detention typically ranges from two weeks to one year. During this time, offenders may be released for work or community service (Harding, 1989a). Data on effectiveness is limited and inconclusive, although data analyses indicated reduced recidivism among both first-time and repeat offenders sentenced to a facility in Prince George’s County, Maryland (Harding, 1989b; Voas and Tippetts, 1989). In a recent study of a special facility in San Juan County, New Mexico, which was modeled after the Prince George’s County facility, it was found that recidivism at five years after treatment was 23.4 percent compared to 40.1 percent for a similar group of offenders not treated at the facility (Kunitz et al., 2002). The San Juan County facility mainly treated offenders who were Native American (70%) and Hispanic (10%).

Probation

The U.S. Supreme Court recently wrote about probation and its purposes in the decision of United States v. Knights (2001). The Court concluded: “...a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Although probation may reduce recidivism slightly among drivers at low risk for recidivism (Wells-Parker, Anderson, Landrum, and Snow, 1988), probation alone does not measurably reduce recidivism among those at high risk (Jones and Lacey, 1991). There is some evidence that probation combined with treatment can be effective (Nochajski, Bell, and Augustino, 1995). Conditions of probation vary widely. For DWI offenders, probation may require:

• Abstinence from alcohol and illegal drugs, subject to random screening by breath or urine testing;
• Additional sanctions for driving without a license that has been suspended by the court or motor vehicle administration, or driving without insurance; and
• Court-ordered treatment, home detention (sometimes with alcohol monitoring using various remote devices designed for such purposes), license or vehicle restrictions, or any other sanctioning option discussed in this guide.

Variations of DWI probation include basic supervision probation (monthly visits), unsupervised probation, and case-specific restrictions (individualized). Some of the more promising forms of probation are:

• Intensive supervision probation (ISP). In ISP programs, offenders have more contact with probation officers compared with standard (nonintensive) probation programs and participate in various educational and therapeutic programs in the community (Harding, 1989a; Transportation Research Board, 1995). Results of intensive probation have traditionally been difficult to evaluate (Latessa and Travis, 1988; Greene and Phillips, 1990). One NHTSA-sponsored evaluation (Jones, Wiliszowski, and Lacey, 1996) examined the Milwaukee County Pretrial Intoxicated Driver Intervention Project (of which ISP was a component). Significantly fewer offenders who received ISP recidivated compared to those who did not receive the program (5.9 % versus 12.5%).
• Home detention. This approach to incarceration recognizes a defendant’s need to drive during the day either to get to work or to court-ordered treatment, but keeps the defendant off the road during evening and nighttime hours, when most DWI violations occur. Home detention as a condition of probation is generally enforced by electronic monitoring (see below), with violation punishable by jail (Jacobs, 1990). No data has been published on the effectiveness of this sanction with DWI offenders except for programs that couple home detention with electronic monitoring.
• Electronic monitoring. Electronic monitoring is a computerized method of verifying that the offender remains at home except when excused to attend work or treatment (Harding, 1989a). Offenders are outfitted with a waterproof, shock-resistant transmitter on a band that is strapped securely on their ankles (Jones and Lacey, 2000). In a 7-year study (Lilly, Ball, Curry, and McMullen, 1993), recidivism was less than 3 percent among a group of DWI offenders who were electronically monitored over approximately 2 to 3 months while on probation. However, recidivism increased at the completion of the monitoring period. More recently, Jones et al., (1996) evaluated the Los Angeles County Electronic Monitoring/Home Detention Program. Their analysis found that the electronic monitoring program reduced the reconviction rate by nearly one-third. One study of offenders in Pennsylvania looked at the differences between those who served their sentences in jail only and those who served their sentences under house arrest with electronic monitoring. While there were no significant differences between the groups, those offenders who were employed at the time they were sentenced to electronic monitoring were more successful than those on electronic monitoring and unemployed (Courtright, Berg, and Mutchnick, 2000). There are other benefits of house arrest combined with electronic monitoring. For instance, it allows the offender to be home with his/her family, the curfew keeps the offender off the road during prime DWI hours, it can be adapted to employment hours, AA meeting, etc. and it is less expensive than jail (Jones et al., 1996). Some challenges of electronic monitoring include the cost (some suggest using grant money to help certain people pay for it; sliding scales have also been used), trouble with the monitoring devices (e.g., wakes up the offender too often, doesn’t recognize his/her voice, disturbs others in the home), and a lack of face-to-face observation. However, at least one company has solved that problem by providing a digital image of the person being monitored when the probation officer calls the offender on the phone.
• Day Reporting Centers (DRCs). DRCs are highly structured, nonresidential facilities that provide counseling, supervision, employment, education, and community resource referrals to DWI probationers (Jones and Lacey, 2000). In a NHTSA-sponsored study of the Maricopa County (Arizona) DRC program, Jones and Lacey (1999) found that while the DRC was not significantly more effective in reducing recidivism (compared to traditional probation programs), the program facilitated offenders’ reintegration into society and was more cost-effective than jail.
• DWI courts. Modeled after drug courts, and incorporating some of the forms of probation described above, DWI courts are designed to provide constant supervision to offenders by judges and other court officials who closely administer and monitor compliance with court-ordered sanctions coupled with treatment. DWI courts generally involve frequent interaction of the offender with the DWI court judge, intensive supervision by probation officers, intensive treatment, random alcohol and other drug testing, community service, lifestyle changes, positive reinforcement for successful performance in the program and going back to jail for noncompliance (National Association of Drug Court Professionals, 1997; National Drug Court Institute, 2002). Most DWI courts assign nonviolent offenders who have had two or more DWI convictions in the past to the court. At the present time, there are multiple sources of funding for drug/DWI courts to help defray their costs. DWI courts have been shown to hold offenders accountable for their actions, change offenders’ behavior to end recidivism, stop alcohol abuse, treat the victims of DWI offenders in a fair and just way, and protect the public (Tauber and Huddleston, 1999; Freeman-Wilson and Wilkosz, 2002). Breckenridge, Winfree, Maupin, and Clason (2000) report that such a program significantly reduces recidivism among alcoholic DWI offenders. Other studies of this type of program are currently underway and DWI courts are being implemented in Georgia, Pennsylvania, and other States. Specialized DWI courts provide greater opportunity for close monitoring and offender accountability. However, this currently is only done with the most egregious offenders (Robertson and Simpson, 2002). At the end of 2003, there were approximately 70 DWI courts and 1,100 drug courts operating in the U.S. One report on a DWI court in New Mexico indicated that recidivism was reduced by over 50 percent for offenders completing the DWI court compared to similar offenders not assigned to the DWI court (Guerin and Pitts, 2002). Those results, however, were preliminary and did not include statistical tests. NHTSA is completing an evaluation of the Maricopa County (Phoenix), Arizona, DWI court using a random assignment design (Jones, in press). In this research, more than 250 felony DWI offenders were randomly assigned to the DWI court and a comparable number of offenders were assigned to traditional probation services. The Maricopa DWI court includes monthly in-person court appearances by the offenders before the judge, frequent contact with an assigned probation officer, regular meetings with treatment personnel, participation in AA meetings, attendance at Victim Impact Panels (VIP), and random testing for alcohol and other drug use. Qualifications for graduation from the DWI court include meeting all treatment and program requirements, maintaining steady employment for six months, remaining alcohol-free for six months, and having a stable residence. NHTSA presently is collaborating with the Department of Justice to promote the increased use of DWI courts and encourage jurisdictions that utilize drug courts to accept repeat DWI offenders in them (NHTSA, 2003b).