“ It is the role of the judge in the 21st century to assume a leadership position with regard to the DWI issue. We should set standards for new judges and chief justices alike, identifying what is expected of judges handling DWI cases.” - Judge Robert Pirraglia

While judges must be careful to maintain neutrality in handling DWI cases, they can and should have an important role in reducing the prevalence of hardcore drunk driving and the deaths and injuries it causes. A growing number of judges across the country have developed and adopted promising and innovative programs to address hardcore drunk driving.

These efforts are necessary because drunk driving cases present the most challenging legal and evidentiary issues a judge can hear in a courtroom and hardcore drunk driving cases present even thornier challenges for the judiciary.

While thousands of DWI laws have been enacted to effectively deal with convicted drunk driving offenders, simply having a law on the books isn’t enough. For a variety of reasons, many laws are not well-enforced and sometimes drunk driving cases are not given the priority they deserve.

Judges who handle drunk driving cases must ask themselves what sentencing strategies are available to prevent and discourage the hardcore offender from continuing to drive while impaired. They must start by recognizing that drunk drivers vary greatly in their responses to specific deterrents and thus, to the extent possible, individual sentencing should be exercised. Additionally, research shows that swift and certain sanctions are more effective in deterring all such offenders than the imposition of punishment alone (NHTSA, 1996).

Unfortunately, swift and certain rarely apply to drunk driving proceedings. Significant delays routinely occur between arrest and disposition (by trial or plea) due to the sheer number of DWI and other criminal cases pending before most of the nation’s courts. As a result, plea agreements and pretrial diversion programs can result in a reduced charge that oftentimes allows a drunk driver to escape a DWI conviction and avoid the sanctions imposed by law. Sentencing guidelines are commonly ignored and licensing sanctions are reduced or eliminated (Voas, 1995).

Studies show that when a hardcore drunk driver receives a lenient sentence, the deterrent effect is weakened and the likelihood of recidivism increases exponentially. In order to prevent this result, judges must adopt policies and procedures that minimize such outcomes.

It is also in the interest of the judiciary to comprehensively sentence the hardcore drunk driver. Without such judicial action, state legislatures may try to remedy this problem through legislation. This can lead to ineffective laws and can restrict judicial flexibility in imposing individualized sentences that present the best chance to reduce recidivism.

The Importance of Judicial Leadership

It is no easy task to identify, sanction and also treat hardcore drunk driving offenders. Too often, they thwart attempts to effectively adjudicate their cases and they successfully defeat the system in the following ways:

  • They refuse to take BAC tests when arrested. Studies show that more than 50 percent of repeat offenders refuse BAC tests.
  • They seek to delay timely hearings and try to appear before a judge of their attorney’s choice.
  • Their defense attorneys misuse discovery requests to damage the prosecution’s efforts and law enforcement testimony.
  • They file an appeal even if the grounds are weak.
  • They fail to complete their sentences.
  • They fail to return for court reviews and are not brought to justice for months or years thereafter.

It is crucial that judges maintain the integrity of the judicial process by short-circuiting such actions. Judges should ensure trials are held in a timely manner and, upon conviction, that punishment and treatment will be certain and sure. Defendants must understand that their repeated high risk behavior, if detected, will result in meaningful sanctions, counseling and treatment.

To do this, judges must prioritize hardcore drunk driving cases. More effective case management is needed for these defendants. Judges must work with colleagues to reduce case backlogs. Judges should seek additional resources to handle and dispose of these cases and should request sufficient supervisory help to ensure judicially imposed sentences are carried out.

The Importance of Individualized Sentences Based on Risks/Needs

In the second edition of the Hardcore Drunk Driving Judicial Education Guide, the focus is on the growing body of research that emphasizes the critical importance of individualized sentencing for hardcore drunk drivers. In fact, research has begun to suggest that cookie- cutter sentencing can actually increase the hardcore drunk driving problem.

A 2006 survey sponsored by the National Center for State Courts (NCSC) queried the general public about sentencing practices. Among the respondents:

  • 75 percent thought sentencing practices needed some/major changes
  • 79 percent thought many offenders could be rehabilitated
  • 59 percent thought prisons were unsuccessful at rehabilitation
  • 88 percent thought alternative sentences for non-violent offenders should be used often/sometimes
  • 66 percent thought judges should have a big or leading role in this effort

On the heels of this research, The National Center for State Courts produced Using Offender Risk and Needs Assessment Information at Sentencing – Guidance for Courts from a National Working Group.” The publication proposes usage of the Risk-Needs-Responsivity (RNR) model and the information below is excerpted from the publication:

  • The Risk principle holds that supervision and treatment levels should match the offender’s level of risk. In practice this means that low-risk offenders should receive less supervision and services, and higher-risk offenders should receive more intensive supervision and services…
  • The Needs principle maintains that treatment services should target an offender’s criminogenic needs – the dynamic (changeable) risk factors most associated with criminal behavior…
  • The Responsivity principle contends that treatment interventions should use cognitive social learning strategies and be tailored to the offender’s specific learning style, motivation and strengths…

Taken together, these principles can lead to reductions in recidivism as outlined in the table below.

  High Risk Low Risk
High Needs Accountability, Treatment & Habilitation Treatment and Habilitation
Low Needs Accountability & Habilitation Prevention

Source: Douglas B. Marlowe, J.D, Ph.D., Targeting Dispositions by Risks and Needs Treatment Research Institute at the University of Pennsylvania

The principles of evidence-based sentencing suggest that effective interventions focus on the offender’s likelihood of reoffending and the offender’s “criminogenic needs.” Sentences should then be crafted to address the offender’s individual characteristics. The level of supervision should match the risk level of the offender.

Indentification of Offender Risks & Needs

The assessment of the hardcore drunk driving offender leads everything else in the adjudication process. - Judge Richard Vlavlanos

In order to stop hardcore drunk drivers from re-offending, it is necessary to change their thinking patterns, target their criminogenic needs and teach them pro-social skills and behaviors. What will not stop these offenders are random sanctions that are meted out without regard for individual offender needs. The first step in this process is offender assessments and evaluations that judges can use to guide sentencing. As judges pursue individualized sentencing, it is important to remember that there are limits on judicial discretion. Judges must ensure that they know and understand their states’ legal parameters and craft effective sentences that fall within those parameters.

After offenders are identified according to high, moderate and low risk of re-offending, their sentences should be tailored to their risks and needs. For instance, a low risk offender who is very unlikely to re-offend does not need the same level of supervision and intervention as a high risk offender. Conversely, an extremely high risk offender who is likely to resist all treatment efforts and is likely to re-offend despite any approach may be a challenge for the scarce resources of traditional courts. These offenders are appropriate candidates for DWI Courts that specialize in treating high risk offenders.

Additionally, a growing body of research reveals that low risk offenders who are subject to intensive interventions and programming often produce little, if any, positive effect on recidivism rates (Bogue, 2004). There is also evidence to suggest that subjecting low risk offenders to intensive services can backfire and result in increasing their chances of re- offending (Latessa & Lowenkamp, 2006; Bonta, Wallace-Capretta, & Rooney, 2000).

Potential reasons for this include that low risk offenders may actually adopt the antisocial attitudes and behaviors of high risk offenders with whom they are placed and/or placement of low risk offenders in intensive interventions may actually disrupt any positive social bonds or activities that may have existed prior to their placement.  However, it is still important to hold low risk offenders accountable for their behavior (Latessa & Lowenkamp, 2006).

Identification of risk and needs by using risk assessment tools along with assessment tools to identify alcohol, drug and mental health issues is priority number one when dealing with hardcore DWI offenders. Numerous experts have agreed that exposing offenders to the wrong interventions can actually increase recidivism.

Actuarial risk assessment tools cannot take the place of professional judgment, but they can absolutely provide better information for the judiciary to use in the decision-making process. Some criminal risks change over time and therefore offenders should be re-assessed to measure progress and provide an accurate prediction of recidivism over time.