Mark William Ivey really, really did not want to be on probation. He wanted to do his jail time and get on with his life — and his drinking.
At his trial in Travis County, where he was charged with driving while intoxicated, Ivey declined to give the jury the option to sentence him to probation. He contended he didn’t need treatment, and despite blood-alcohol tests that showed he was over twice the legal limit, Ivey told jurors he was not too impaired to drive. “Yes, I will drive again with alcohol in my system,” he told the jury. When the judge tried to force Ivey to serve probation time and get substance-abuse treatment, he appealed, and eventually his case went all the way to the state’s top criminal court.
Across Texas, defendants like Ivey who are charged with misdemeanor offenses are choosing to spend time in the local lockup rather than endure months on probation. They don’t want to deal with the hassle of probation conditions, and they can’t afford the thousands of dollars in fees that probation requires. People on both sides of the criminal justice system agree the trend is troubling: It means more people with criminal records and overcrowded local jails — and worse, it means that people charged with crimes like driving while intoxicated, possession of small amounts of drugs, and family violence are not getting the treatment they would receive on probation. “A misdemeanor, a lot of times, just means that’s the only thing they were caught with,” says Todd Jermstad, director of probation in Bell and Lampasas counties. “It doesn’t mean they don’t have risks and issues that could lead to crime later on that could be stemmed with intervention.”
Richard Alpert has been a prosecutor for 23 years in Tarrant County, and for 17 of those, he has led the misdemeanor division. It used to be, he says, that about 70 percent of the defendants charged with DWI would choose probation and the rest would take jail time. “What we currently have going on is just the opposite,” he says. About 16 percent of inmates serving time in Texas county jails in September were in on misdemeanor charges, according to data from the Texas Commission on Jail Standards. In Tarrant County, misdemeanor offenders accounted for nearly 19 percent of inmates, and in Travis County, about 22 percent were misdemeanor cases. In a handful of counties, particularly those with small jail populations, inmates with misdemeanor charges accounted for half or more of the total.
Alpert says the choice that misdemeanor defendants make usually comes down to money. For a first DWI offense, a Class B misdemeanor, the range of punishment includes a $2,000 fine, between three days and six months in jail, and up to 100 hours of community service. Probation for the same offense can last up to two years and requires a monthly fee of $60 to $100. It usually includes some sort of drug and alcohol treatment, along with drug screenings, all at the defendant's expense. Add it all up and probation costs significantly more than the fine. Then consider that defendants get credit for time served in jail before trial and could be eligible for “good time” credit of up to three days for each day that they work or do other good deeds in jail. In the end, individuals charged with a first DWI face the choice of two years' worth of fees, drug tests and the authorities in their business or a one-time fine and a few days or weeks in the clink. “To be quite honest, it’s a very rational decision,” Jermstad says.
But county jails don’t provide drug and alcohol abuse treatment programs, and they don’t offer counseling to prevent violent behavior. “The problem is [that] these people are not get counseling, they’re not getting treatment,” Alpert says. That means the problems that landed them behind bars persist. Alpert says he has seen an alarming increase in the number of repeat DWI offenders under the age of 21. “We’re not doing enough to get these dangerous drivers off the roadway,” he says.
Take me to jail, please
All too often, Alpert says, he sees defendants like Mark Ivey who simply don’t want treatment. Ivey was arrested after officers found his blood-alcohol level was 0.165, more than double the legal limit of 0.08. He chose to take his case to a jury, and he declined a provision that would allow them to sentence him to probation. The jury found Ivey guilty and sentenced him to 35 days in jail and a $2,000 fine. But Travis County Judge Nancy Hohengarten decided Ivey needed more treatment than he could get behind bars. She suspended the jury’s sentence — and told Ivey he would have to serve two years on probation, pay a $500 fine, spend 30 days in jail, serve 60 hours of community service and get some counseling.
Ivey argued on appeal that Hohengarten didn’t have the authority to override the jury’s decision. A lower appeals court disagreed and ruled that the judge could assign a punishment in the best interests of public safety. And in February 2009, the Court of Criminal Appeals issued a similar ruling, concluding that the judge had discretion. “The trial court could readily have concluded that the appellant was a generally law-abiding citizen who was in denial about an obvious drinking problem,” the Court of Criminal Appeals held in an opinion joined by seven of its nine judges. “Under such circumstances, the trial court might rationally conclude that the best interest of justice, the public, and the defendant himself would suggest a course of substance-abuse rehabilitation.”
Prosecutors, probation directors and criminal justice advocates agree that lawmakers must make probation more appealing, at least as an alternative to hard time — especially in DWI cases. Texas law does not allow defendants in DWI cases to get deferred adjudication, which is similar to probation except that the offense is stricken from the person’s criminal record if the terms are successfully completed. Alpert says he plans to lobby legislators in the 2011 session to allow deferred adjudication for first-time DWI offenders. Under his proposal, judges could consider the DWI offense only if the person accrued a second DWI offense. “We as prosecutors would now have something we could offer … that would be appealing to them from a consequence standpoint,” Alpert says.
Harris County prosecutors have already started a similar program. Rachel Palmer, assistant Harris County district attorney in charge of misdemeanors, says the department started a pretrial diversion program for misdemeanor defendants, including those charged with DWI, who have no criminal history. The defendant can sign a contract with the district attorney agreeing to terms that often include drug and alcohol treatment along with other restrictions in exchange for avoiding conviction and keeping a clean record. More than 2,000 DWI defendants have completed the program since August 2009, Palmer says. “I don’t want to say the goal is jail population reduction, because it’s not,” she says. “We consider it public safety.”
Does treatment work?
Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition, suggests that lawmakers approve a good-time credit policy for probationers similar to the policy used in jails. Probationers’ sentences could be reduced if they do things like attend counseling or continue their education. “The question should really be: What will help this individual get out of the path that is ... eventually going to end them up in the big house?” says Yañez-Correa.
Providing incentives that keep people on probation and out of jail would save the state money, Yañez-Correa says. It costs state and local governments about $1.25 a day to keep a person on probation. Most of the money for the programs comes from the fees probationers pay. It costs the state and county about $45 a day to keep someone in a county jail. So, if more people choose probation instead of jail, it saves the state money. And if people get the treatment they need and are less likely to re-offend and land back in jail, the state saves more money, she says. “This is an example of why just having sanctions does not work and why people should be given incentives to be successful,” she says.
Austin defense lawyer Adam "Bulletproof" Reposa represented Mark Ivey in his DWI trial and in his appeals, and he says Ivey served his probation sentence. Reposa calls the ruling in Ivey’s case “wholesale ridiculous.” One factor the judges didn't seem to consider, he says, is that probationers can fail to complete the terms of their sentences and wind up right where they wanted to be in the first place: in jail. "If I'm revoked on a probation I never asked for, can that be held against me in the future?" he asks. Reposa doesn't request probation for his DWI clients. Judges and prosecutors, he says, offer defendants probation to make themselves feel good, not because counseling programs actually prevent substance abuse. “It’s not like they come to some grand f---ing epiphany,” Reposa says. “They love to think they’re so influential in people’s lives, but they ain’t.”
But Reposa agrees with prosecutors and others who want to allow deferred adjudication in first-time DWI cases. It’s nonsensical, he says, that people accused of serious sex crimes can get deferred adjudication and have the crimes stricken from their records, but someone charged with drunken driving cannot. “If they did that," he says, "my docket would go down to nothing."