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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

June 28, 2010

Jail has Minimal Effect on OWI Recidivism

Research studies evaluating jail as a judicial intervention to reduce the recidivism rate of operating while intoxicated defendants have overwhelmingly found it to be ineffective.[i] However, limited research evidence exists that a short (two day) jail sentence may result in a reduced recidivism rate.[ii]

Most of these studies were done in the 1990s. The most recent study I could find, found that jail combined with treatment was the most effective strategy among three studied. However, the jail sentences were combined with treatment, so it was not possible to discern the effect of the jail component alone. The study confirmed what other studies had found—that the length of jail did not seem to be related to offenders’ rates of recidivism.[iii] I found no research that considered the effect of prison sentences on the recidivism rate of OWI offenders.

Attempting to deter an offender from re-offending is but one reason for a sentence that involves incarceration. General deterrence of other potential offenders is another reason. Jail sentences may have an educational effect on the general public by making drunk driving less culturally acceptable.[iv] Through a jail sentence, society instills the message that drunk driving is wrong and is not an acceptable behavior.

Incapacitation is another reason for incarcerating drunk drivers. An offender is at much lower risk to re-offend if incarcerated. (However, it does happen that an offender on work-release re-offends.) With some offenders, the risk to the public from their repeated drinking and driving is so great that their treatment must be in a confined setting to protect the public.

Another reason for incarcerating drunk drivers derives not from the possible consequences of the punishment, but from the deontological view that drunk driving is deserving of punishment because it is morally wrong—period. Someone, by driving drunk, has put other individuals at risk of harm or death through negligent or reckless drinking and driving behavior. The argument goes, that the wrong itself requires retribution, regardless of any practical effect from the punishment. The deontological argument doesn’t consider behavioral changes to the defendant or others, and therefore it does not lend itself to measurement and hence empirical investigation. I will return to this topic at another time from a different angle.

The problem with incarceration is that it is not free. Society must pay for jail and prison space and their attending direct costs, as well as for the collateral costs to the families of the incarcerated. In any fiscally healthy society, the cost of government must be scrutinized to ensure tax dollars are used wisely. Every tax-dollar spent on incarceration is a tax-dollar not available for another societal need. Judges cannot escape that truth when sentencing.

Does the next dollar spent on incarceration increase community safety or the perception of justice by at least a dollar? Is a perception of justice alone enough to justify the cost of this punishment? Those are the questions that are being asked more frequently as our society struggles to address its increasing public debt. I believe they are the correct questions.

[i] Voas, Robert B and Deborah A. Fisher, 2001, “Court Procedures for Handling Intoxicated Drivers”, National Institute of Alcohol Abuse and Alcoholism.

[ii] C. Falcowski, 1984, “The Impact of Two Day jail Sentences for Drunk Drivers in Hennepin County, Minnesota, NITSA

[iii] Delaney, Harold D., et al, (2005) “Variations in Jail Sentences and the Probability of Re-Arrest for Driving While Intoxicated.” Traffic Injury Prevention, Vol. 6 Issue 2.

[iv] James L. Nichols, and J. Laurence Ross, (1990) “The Effectiveness of Legal Sanctions in Dealing with Drinking Drivers,” Alcohol, Drugs, and Driving, 6(2) 33-55.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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