The Problem: The Repeat DWI Offender
By: Honorable Michael J.Haley
“The gods had condemned Sisyphus
to ceaselessly roll a rock to the top of
a mountain, whence the stone would
fall back of its own weight. They had
thought with some reason that there is
no more dreadful punishment than futile
and hopeless labor.” Albert Camus
The criminal justice system’s response
to drug-related offenses has traditionally
been to “arrest,
adjudicate, and
incarcerate drug
abusers without
regard to the incredibly high
rates of recidivism
in this population.
Nearly 7 in 10 convicted drug offenders
re-offend within three years of release
from incarceration.”1 NHTSA reports that
over one-half of DWI arrests involve
a repeat offender. And we know that
one-third of all drivers arrested for DWI
are repeat offenders and that they are
responsible for nearly one-half of all
DWI fatalities. 2
We who spend our lives working within
the criminal justice system know that,
despite “tough on crime” campaign
promises, incarceration does little
to interfere with substance abuse
patterns, let alone deter the drunk driver.
“Perversely, lengthy incarceration is not
only the most expensive response to
drug crimes, but also the option most
likely to result in recidivism.” 3 Happily,
we do not have to continue to condemn
ourselves to futile and hopeless labor.
DWI Courts can help us move the
boulder up the mountain.
A Drug Treatment Court (DTC) in
Michigan is defined by statute as a“court supervised treatment program for
individuals who abuse or are dependent
upon any controlled substance or
alcohol.”4 A “DWI Court” is a court
dedicated to changing the behavior of
the alcohol-dependent individual, with
the repeat offender as its primary target
population. The goal of a DWI Court
(or “Sobriety Court,” as we call them
in Michigan) is to protect the public by
reducing the incidence of drunk driving
by using a Drug Court model of treatment
and accountability to address the root
cause of this type of crime: alcohol and
other substance abuse. 5 These courts
are organized around 10 “Guiding
Principles” set forth by the National
Association of Drug Court Professionals
(NADCP), and now incorporated in our
statute, which enable the court to use a
non-adversarial approach to repeat OWI
offenders, identifying them early in the
process (at or even before arraignment),
placing them quickly into treatment and
then monitoring each participant with
frequent, random and observed drug
testing.
The Process
“My life before Sobriety Court was based
around drinking, parties and getting
drunk…I had lost my job again…23 and
still living at home with my mom…I will
never forget one night, I prayed for help.
A few days later, I got pulled over for the second time…I was sent to jail and
the magistrate gave me a little green
book and told me to think about sobriety
court.” (Exit narrative of Megan S.)
Sobriety Court participants are identified
early on in the process, shortly after
arrest, while they are still full of shame
and guilt and the stink of the drunk
tank. Therapists call this a “teachable
moment.”
Arraignments are scheduled within days
of the arrest, on a Wednesday,
when our Sobriety Court
prosecutor, together with a
defense attorney, sit down with
the individual and present an
overview of the (voluntary)
program: 2 full years of probation,
substance abuse treatment, 12-step recovery plan, drug testing,
meetings with probation and frequent
court appearances (review hearings).
No jail time up front. Some of these folks
hear only these last 5 words and sign up
with unbridled enthusiasm. Therapists
call these folks “pre-contemplative” or
“extrinsically motivated.”
Whether they are seeking sobriety
or simply a temporary reprieve so
they can figure how to scam the next
urine screen, they plead guilty and
are sentenced within the week after
a substance abuse assessment and
pre-sentence interview with probation.
The sentencing itself looks a lot like a
“normal” hearing, but that is where the
resemblance ends.
“I’ve got to be honest – a man wearing
a black dress controlling two years
of my life bothered the bejesus outta
me…but our meetings (in court) were
lighthearted. And I appreciate what
you had to say – the jokes, the realism
and the attaboys…You told me what
you honestly thought.” (Brian P., recent
graduate, Christmas card 2008).
Sobriety Court: Heart and Soul
The hallmark of a Sobriety Court, that
component that sets it aside from a
traditional Sisyphus court, is “ongoing
close judicial interaction with each
participant,”6 which is accomplished
in a “review hearing.” This is where
the judge can have an impact on
each individual, calling them up (and
sometimes calling them out) one at a
time and reviewing their progress or
relapse or attitude issue and trying hard
to nudge each person just a little further
through the stages of change.
Each participant is required to attend 2
review hearings each month in Phase
I (4-6 months) and monthly thereafter.
Addressing each person individually, the
judge may: practice reflective listening ,
(“So what you are saying, Joe, is that you
did the 12 steps on your last DUI so you
don’t need to do them again?”); engage
in some motivational interviewing, (“So
now do you see how being honest might
be at war with diluting your urine?”);
impose a weekend in jail for forging A.A. verification signatures; encourage
the single mom who now has a drugfree
4-month old in court; and then
lead a round of applause for a 5-time
OWI offender who has been sober for
6 months.
The “jokes, the realism and the attaboys”
during the review hearings, the therapists
call this moving the individual through
the stages of change – by imposing
immediate and consistent consequences
for their noncompliance (sanctions) and
rewards as a means of increasing
desirable behavior (incentives). When
imposed by a judge in this setting,
“This may be …more therapeutic than
treatment, because it instills a sense
of accountability and applies basic
principles of behavior modification in the
most effective manner.”7 Or, as David
R. put it in his Christmas card to the
judge, “Thanks again for the support,
discipline and structure when I needed
it the most.” (Dave R., recent graduate,
Christmas card 2008).
The judge is the person who appears
to make all this change just happen
right there in the courtroom, like one of
those TV chefs. But the reality is that
most of the change is happening very
slowly deep inside the brain somewhere
between the group and individual
treatment sessions and the meetings
with a highly trained intensive-probation
officer who doubles as a counselor, life
coach and compliance officer, even
making random home visits on each
participant. Change occurs when a
Sobriety Court participant sits through 6
months of forced 12-step meetings until
he finally “gets it” – that these “country
western whiners” are actually playing
his song.
In the end, the typical Sobriety Court
graduate lists his probation officer and
therapist, sometimes even the judge,
and this program at the top of a list of
gratitudes. In Traverse City, over 500
men and women have been admitted
to Sobriety Court since its inception in
2001. About 65% of them have, or will,
complete the program successfully. But
all will have been affected in a positive
way. Less than 3% of the graduates will
re-offend with another OWI. That means that completing this program makes the
typical OWI offender 10 times less likely
to re-offend. These numbers are not
anomalous. They are fairly typical of a
Michigan Sobriety Court that adheres to
the DTC model.
Sobriety Courts Work
While in the south of Ireland once, I
visited an old jail in Cork City. The tour
guide pointed out that the windows up
near the roof were an innovation in
prison architecture in the 19th century:
the idea was that the daylight coming
in would enhance and promote the
rehabilitation of the prisoner. Sobriety
Courts have been the window of light
in the architecture of our criminal justice
system, enabling Michigan courts to
slow down the revolving door which
has become the cliché metaphor
representing our justice system. Surely,
prosecutors and judges by now have
figured out that incarceration is an
expensive and impotent response to
the repeat DWI case. Sobriety Courts
will enable us to fulfill our very basic
roles in doing a much more effective
job protecting the public from the threat
posed by this type of offender.
Editor’s Note: In 1996, the Honorable
Michael Haley was elected as District
Court Judge for the 86th District for the
County of Grand Traverse. In 2001, he
started Sobriety Court, and his court
is nationally recognized as one of four
“Academy Courts” by the National Center
for DWI Courts. He is the Presidentelect
of the Michigan Association of
Drug Court Professionals.
- Hon. Peggy Hora, Drug Treatment Courts in the 21st Century, 42 Georgia Law
Review 717 (2008).
- Source: National Drug Court Institute (2009).
- Hora, supra, at p. 724
- MCL600.1060(c).
- C. West Huddleston, “Painting the Current Picture,” National Drug Court Institute,
Vol. II, No. 1, May 2008.
- MCL600.1060(c)(vii)
- Douglas B. Marlowe, J.D., PhD, “The Judge is a Key Component of Drug Court,”
Drug Court Review, Vol. IV, 2, p.6 (2004).
