Study: Staggered sentences help to reduce DWI recidivism

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Staggered sentencing reduces recidivism in offenders convicted of driving while intoxicated by nearly 50 percent, according to a recent Minnesota House of Representatives study.

Staggered sentencing involves a period of incarceration to be served in two or more installments over a period of probation, along with other conditions. It has been implemented in different ways by judges including Judge James Dehn in the 10th Judicial District and Judge Stephen Aldrich in the 4th Judicial District.

The first 61 offenders given staggered sentences by Dehn were re-arrested for DWI at only about one-half the rate that would be expected based on the recidivism of comparable DWI offenders sentenced by all other Minnesota courts.

The study tracking the incarceration rate — “Controlling Repeat DWI Offenders with Staggered Sentencing” — states that the findings should be regarded as preliminary. However, if they hold up, staggered sentencing could help reduce fiscal burdens for county governments while simultaneously enhancing traffic safety.

The study advises courts to go forward with developing, testing, and fine-tuning staggered sentencing, “since few if any programs have shown this magnitude of early success in controlling repeat DWI offenders.”

Cost savings projected

Proposed legislation specifically authorizing staggered sentencing for DWIs has been approved by the House of Representatives Judiciary Committee, said Dehn, who testified on behalf of the bill. The bill also is pending before the Senate Crime Prevention and Public Safety Committee. Both the fiscal note to the House bill and the legislative study indicate staggered sentencing could mean significant savings to courts and corrections.

The fiscal note to the House bill states that the impact of a staggered sentencing program would be minimal to state prisons, but would range from $730,000 to $1.464 million per year to local jails if used for between one- and two-thirds of DWI offenders with three or more qualified prior impaired driving incidents.

According to Dehn, offenders who are successful under staggered sentencing are forgiven, on average, about 78 days of executed jail time, or 52 days after deducting credit for good time earned.

“At the approximate per diem jail cost of $60 (a conservative estimate), the 52 days saved translates to a direct jail cost savings of over $3,000 per successful offender on the current offense,” the report states. “Further law enforcement, judicial, and correctional cost savings would derive from the nearly 50 percent reduction in recidivism.”

Addiction model

Dehn told Minnesota Lawyer in a recent interview that his interest in staggered sentencing models dates back to a remark by a woman he sentenced to electronic monitoring about 10 years ago. She told him that if he had told her that she could prove herself to him, it would have given her an incentive to stay sober. Dehn thought about that for a while, and then decided to try it. Since that time, Dehn has used a staggered-sentence approach in a number of cases. He also teaches judges all over the country about the program.

Staggered sentencing is generally confined to DWI cases because the model was created to monitor addicted defendants, said Aldrich. “Nobody’s offered a justification for using it in other ways” — although it could be possible if a defendant had a different kind of psychological state similar to alcohol addiction, he said.

Dehn has tried staggered sentencing in other cases but says he is moving very slowly on it. He imposed a staggered sentence in a felony domestic assault case where he had the support of the victim’s advocates for the sentence. However, the people close to the offender need to tell the court that he or she is following the court’s orders, Dehn said, adding: “There is a concern that obtaining this proof re-victimizes the victim.”

Four-fold model

There are four aspects to a staggered-sentencing model. First, rather than execute one continuous period of incarceration, the judge places the offender on probation for several years and orders the executed period of incarceration to be served in two or more installments during the probation. The first installment must be served right away, and the offender is given the date or dates in the future for the later segments.

The second part of the model is the opportunity for the offender who maintains sobriety to move the sentencing judge for forgiveness of all or a part of the next period of incarceration. Thus, the offender has the incentive of serving less time incarcerated and also has to face the sentencing judge repeatedly. “Having to come back to the same judge is important,” Dehn said.

Under staggered sentencing, the responsibility rests with the offender to take control of the probationary process, says Dehn. The legislative report explains, “Unlike traditional probation — a system under which an offender receives additional consequences for program failures — an offender is told that success will allow the court to give the offender additional control over the offender’s life.” If the offender does not request a hearing he or she must serve the next installment or have probation violated.

At the time of the hearing, the offender must explain why the incarceration period should be forgiven, write a letter to the judge about being sober, and provide letters from sponsors, family members, or others. In addition, a report from the probation officer is required.

A third part of the model is use of remote electronic alcohol monitoring (REAM), although the offender may petition to have it waived. (REAM tests the offender’s breath for alcohol over a telephone.) REAM must be performed three times per day — upon rising, after work, and late in the evening. It may be scheduled at different times throughout the year but usually includes the Christmas and New Year holidays. If the offender fails the test or fails to make the call, he or she is immediately arrested. According to Dehn, electronic monitoring is critical to the success of the staggered sentence.

Finally, the model imposes clearly articulated consequences for specific violations of probation. An offender is told that any arrest for a new DWI offense will revoke the probation and result in immediate incarceration of the entire remaining stayed sentence. Violation of other terms of probation will result in the execution of the next segment of incarceration.

Dehn has imposed various conditions of probation in his sentences but all have involved electronic monitoring. Other conditions include fines, community service, treatment, AA, and attendance at victim impact panels.

“This is one of the most exciting things I’ve ever been involved with,” said Dehn.

Department of Corrections Commissioner Joan Fabian said staggered sentencing has the potential for nationwide application, so long as elements such as the alcohol monitoring are also duplicated. “It gives offenders an impetus to do well that the other programs don’t always do,” she said. “I was sure impressed.”

An alternative method

Aldrich imposed a different type of staggered sentence in an alcohol-related criminal vehicular homicide case. The sentencing guidelines called for a 48-month commitment to prison for the offense, the defendant’s second DWI. Aldri
ch instead sentenced the defendant to 72 months, stayed for 10 years on multiple conditions. The defendant was ordered to serve 275 days in the workhouse immediately, and 18 days per year for five years, commencing on the first anniversary of the offense. That would be followed for four years by 15 days of sentence to service (a county correctional work program) and 120 hours of community service per year.

At the time of the sentencing, Aldrich explained in a memorandum: “[T]he Court has reviewed the research [that] indicates that, as a general rule, long prison and jail sentences do little to deter the drunken driving which caused of the death of [the victim]. Indeed, [it was] stated at a seminar of judges that the principle effect of long prison terms is to cause defendants no longer to fear the sanction of prison, and they do not, without more, reduce recidivism.

“The research presented to the Court does indicate that what works to reduce repeat drunken driving is a combination of jail and other sanctions, given in multiple doses, over an extended period of time. That research and that conclusion are the basis of this Court’s sentence.”

The sentence was upheld by the Court of Appeals in State v. Gebeck in 2001. The Gebeck court stated, “under the district court’s conditions of probation, every year for ten years, [the defendant] will face periods of incarceration or community service, and every day, she will face a six-year sentence if she decides to drink and drive again. The probation thus provides the district court with greater leverage to assure her success and the public’s safety.”

The Gebeck case is significantly different from the sentences imposed by Dehn because the case involved a felony level criminal vehicular homicide, there is no option to earn forgiveness, and there is no use of electronic alcohol monitoring, the report stated.

Aldrich observed that the Gebeck sentence was controversial at the time. However, he stressed that he doesn’t see it as an “easy” sentence. “Most felons would rather do three or four years of hard time,” he said.

In 2002 Aldrich was re-elected to his seat with about 67 percent of the vote, in a race where the Gebeck sentence was an issue. His opponent, Judd Edward Gushwa, was a prosecutor for Minneapolis and a former police officer.

“I ran on staggered sentencing and got more votes than anybody,” Aldrich said.