Brendan I. Koerner has written an intelligent article about Alcoholics Anonymous in Wired, entitled “Secret of AA: After 75 years We Don’t Know How It Works.” The article describes recent research on the effectiveness of AA (It doesn’t appear to work when ordered by a court), but also discusses the physiology of alcohol addiction and the neurological effects of the addiction. The article further discusses some of the possible mechanisms that may be at work in AA’s success in reducing addiction to alcohol. One point made by the article, which legal practitioners must keep in mind, is that 90 percent of alcohol dependent people who had stopped drinking will drink again. If you are interested in the seeming intractability of the problems we see related to the abuse of alcohol, this article is worth your time. http://www.wired.com/magazine/2010/06/ff_alcoholics_anonymous/
June 30, 2010
Intelligent Article on Alcoholics Anonymous
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.
[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.
June 24, 2010
Why Aren't Drunk Drivers Deterred?
According to the research, judicial interventions result in only small reductions, if any, in the OWI recidivism rate. Of course, judicial interventions only involve individuals with a prior OWI. Judges haven’t had any prior involvement with the largest group of OWI offenders—OWI 1sts.
For that group, society must rely on simple deterrence principles alone to stop drunk driving. The classical deterrence principles of Cesare Beccaria, that are still argued every day in court rooms in Wisconsin, demand that the expected costs of drunk driving must exceed the expected value of drunk driving.
This theory is underpinned by the rational actor model of human behavior. The rational actor model of human behavior has been the foundation of economics and law for centuries. (It is almost certainly wrong, but that is a discussion for another day, and does not affect the analysis below.)
A rational actor makes the decision about whether or not to drive drunk by comparing the expected costs and the expected benefits of drunk driving. If the expected benefits exceed the costs, then the rational actor drives drunk. If not, then he finds a different way home or stops drinking before he is intoxicated. The decision point occurs either at the time the next drink will cause him to be intoxicated, or if he is intoxicated, when he decides to drive.
The expected costs can be calculated as follows: (The probability of being arrested for drunk driving multiplied by the probability of being convicted and punished if arrested multiplied by the expected punishment for drunk driving) plus (the probability of being arrested for injury or homicide by intoxicated use multiplied by the probability of being convicted and punished if arrested multiplied by the expected punishment for injury or homicide by intoxicated use) plus ( the probability that one will be injured or killed themselves and the costs of those results).
Research has shown that more than 90% of those arrested for OWI are ultimately convicted. This number has increased greatly over the last twenty five years with changes in the law regarding implied consent, forced blood draws, and the use of blood tests themselves. The punishment levels, including incarceration and fines, have increased dramatically through the years. The punishment for homicide by intoxicated use has increased many fold during my legal career.
What hasn’t changed much in Wisconsin, is the probability of being arrested for drunk driving (If an accident results, the chances of being arrested are quite high). Using the one published survey figure of one drunk driving arrest for every 55 drunk driving incidents, the chance of being arrested for drunk driving is less than 2%.
Based on the low arrest rate for drunk driving, a rational actor can conclude that one will not be arrested if he or she drives drunk. The rational actor will also correctly calculate that there is a low probability of getting into an accident. Therefore, the expected punishment for drunk driving is rationally quite low primarily because of the low probability of being arrested. The classical theory of deterrence fails because the expected costs of driving drunk are less than the expected benefits.
One attempt to change this calculus was to rescind the ban in Wisconsin on sobriety check-points. The hope was to raise the expectation of being arrested for drunk driving. The legislature, after balancing the interests as they should, decided not to lift the ban on such checkpoints.
However, it is clear to me to increase deterrence of operating while intoxicated, policies must be implemented to increase the probability of arrest for drunk driving. Changes in penalties, treatment, and other judicial interventions are all small potatoes compared to changes in the expectation of arrest.
June 22, 2010
Legal Empiricists
Attorney Peg Lautenschlager e-mailed me an alert to an article she happened upon in the current edition of Stanford Lawyer (Spring 2010, Volume 82) that explained legal empiricism within the academy. The link is below. I believe it is worth the read. http://stanfordlawyer.law.
June 21, 2010
Statistical Significance
In research, the effectiveness of a treatment modality is often put in terms of whether or not it is statistically significant. What does statistically significant mean? Let’s take a look.
Most research design starts with what is called the “null hypothesis”. The null hypothesis states that the independent variable (for example, treatment such as alcohol counseling), had no effect on the dependant variable (for example, the recidivism rate). Using legal terms, there is a presumption that the treatment will not help. If that presumption cannot be overcome by statistically significant data, the treatment is considered ineffective. The burden of proof is on the proponent of the treatment modality being studied. The proponent must prove, by statistically significant evidence, that the treatment modality is effective.
For a treatment modality to be considered effective, the data must show that the treatment (alcohol counseling) affected the condition being treated (recidivism rate) and the effect was statistically significant. The difference between the recidivism rate for individuals with no treatment and the recidivism rate for individuals with treatment must be negative (meaning it has declined) and the size of the decline must make it unlikely that it is due to chance alone.
In science, depending on the required rigor of the study, most effects are considered statistically significant if the likelihood that the difference is a result of chance alone is less than 5% or less than 1% (the P-level). For example, one could have a study that showed a reduction of the recidivism rate of 20%, but because of the size and variability of the sample (and other factors), the p-level may be 40%. There is a 40% chance that the measured difference is merely an artifact of pure chance. One would not have much confidence in the result of such a study.
Flip a coin 5 times and if you get 4 heads and 1 tail, there is 60 percent difference in the results (80% heads minus 20% tails). The difference is the result of chance alone, and not due to the construction of the coin. The difference is not statistically significant. If you flipped the coin 1,000 times with the same result, it is far more likely that you have evidence of a trick coin. The larger sample size adds to the chance of finding a difference statistically significant.
Something may be statistically significant, but practically insignificant. For example, imagine a study of a drug for alcoholism involving five million people. The study may show a reduction in alcohol consumption of one tenth of one percent. Because of the size of the sample, this reduction may be statistically significant. But in the practical world of individuals attempting to treat alcohol dependent individuals, this reduction is of no practical value. It is statistically significant, but practically insignificant.June 20, 2010
OWI Recidivism Reduction and Drunk Driving Reduction
Research often shows relatively small reductions in recidivism rates for OWI offenders who have received alcohol treatment. However, one must remained focused on the ultimate concern, which is not reducing recidivism, but reducing dangerous driving due to driving while intoxicated. Although I could not find any definitive study on the number of times individuals that are arrested for OWI have driven drunk and not been arrested, a survey has estimated that for every operating while intoxicated arrest, there are about 55 operating while intoxicated events. Zador, Paul, Sheila Krawchuk and B. Moore. (1997) “Drinking and Driving Trips, Stops by Police, and Arrests: Analysis of the 1995 National Survey of Drinking and Driving Attitudes and Behavior,” Rockvill, MD: Weststat, Inc.
Therefore, if one starts with 100 offenders and assumes a three year recidivism rate of 15%, and that treatment reduces the recidivism rate by 10%, the number of repeat offenders falls from 15 to 13.5 during a three year period. Assuming that for every arrest, there are 55 drunk driving events, the number of drunk driving events from these 100 offenders fall from 825 to 743. The reduction in numbers of defendants re-offending are multiplied to get a much larger reduction in the number of dangerous driving events (operating while intoxicated). A small statistically significant effect may result in a larger practical effect.June 15, 2010
Does Treatment Reduce OWI Recidivism?
The scientific literature has identified alcohol treatment as an effective strategy in reducing the recidivism rate for people convicted of operating while intoxicated. Wells-Parker, Elizabeth, Robert Bangert-Drowns, Robert McMillen, and Marsha Williams, (1995) “Final Results from a meta-analysis of remedial interventions with drink/drive offenders”, Addiction, 90, 907-926; DeYoung, David J., (1997) “An evaluation of the effectiveness of alcohol treatment, driver license actions and jail terms in reducing drunk driving recidivism in California” Addiction 92(8), 989-997.
Wells-Parker et al used a meta-analysis of the literature in their study. A meta-analysis applies statistics to a systematic review of the literature. A review of the literature includes searching for relevant scientific articles and then systematically critiquing the articles. Wells-Parker et al estimated a 7-9% reduction in recidivism resulting from treatment. DeYoung’s study showed a somewhat larger reduction, depending on prior convictions for OWI.
What does a 10% reduction in recidivism mean, for example? Assuming a three year recidivism rate for OWI offenders of 15%, defined as an arrest for another OWI within a three year period, fifteen out of 100 offenders will be arrested for OWI within three years. A 10% reduction in the recidivism rate means that instead of a 15% rate we have a 13.5% rate. Instead of fifteen offenders re-offending out of 100, now there will only be 13.5 offenders out of 100 who re-offend (90% of 15).
The studies indicate that treatment probably works, but is not a silver bullet. Currently, the most effective strategies to reduce recidivism for OWI offenders is license restriction coupled with alcohol treatment.
Because of the cost of alcohol treatment, another issue is identifying the type of treatment modality that is most cost-effective—a tougher issue for researchers. I will discuss that one at another time.
