Is Incarceration the Answer for Repeat DUI?
By Ned Wicker
In a previous blog, I reported about a fatal traffic accident in Oconomowoc, WI on April 25, involving a former orthopedic surgeon, Mark Benson, who rammed is large SUV into the rear end of a stopped car at an intersection, killing the driver, Jennifer Bukosky, her 10 year-old daughter Courtney Bella and her unborn child. In addition two other children in the car were injured. It was reported that Benson was under the influence of oxycodone; Ambien and Xanax. . The Milwaukee Journal-Sentinel reported that the Waukesha County Assistant District Attorney Kevin M. Osborne Waukesha County Assistant District Attorney Kevin M. Osborne knew Benson was under the influence. But reports from the scene of the accident indicated that Oconomowoc police officers did not observe any peculiar behavior from Benson.
“We obviously think he was impaired. . . . The one in particular that we believe to be a high amount is the Ambien. They’re all significant, but we believe that to be a very high result for the Ambien,” Osborne said.
A very important question arises from this tragedy. What does the criminal justice system do with repeat offenders? Benson had a 15-year history of drug addiction to pain medication and other prescription medications. He had several arrests and convictions, yet he was still on the road.
That brings up another important question, given Benson’s long history with drug abuse and addiction, and given the fact that he was in court just two days prior to the accident and ordered to report to jail on May 9, what was he doing behind the wheel of a vehicle to begin with? DUI is a serious problem in Wisconsin, which has an extraordinarily high rate compared to other states.
What should be done to prevent addicts like Benson from harming themselves, and more importantly, others? Benson did not want to be an addict. He did not want to kill someone, but the addiction was more powerful in his life than responsible, rational thought. There is a camp that promotes the idea of felony incarceration for the third conviction. In fact, Wisconsin Governor Jim Doyle issued a statement supporting that idea, but the problem is, in Wisconsin the problem is so rampant that literally thousands would be added to the incarceration population if such a law were passed.
DUI is a huge problem in this state, mainly because drinking is so much a part of the Wisconsin culture. Drug users are likewise given the same treatment by the courts. Judges are reluctant to send offenders off to jail because of the potential for overcrowding. That is frustrating for law enforcement and district attorneys around the state, who are feeling the pressure from an outraged public on the heels of the Oconomowoc tragedy. The law can seemingly do nothing about repeat offenders.
“Just because it’s punishable by incarceration doesn’t mean they would all go to prison,” said Langlade County District Attorney Ralph Uttke, president-elect of the Wisconsin District Attorneys Association told the Milwaukee Journal-Sentinel. “Because of overcrowding, judges are reluctant to send people to prison. In most of those cases, it would probably result in probation.”
One Milwaukee television station stood outside traffic court and confronted offenders who had just lost their driving privileges as they got into their cars and drove off. The law really has no teeth. No matter how many times the court convicts drivers and revokes their licenses, they drive anyway. “Throw them in jail,” is a very general statement and lacks any particulars as to how the state is going to pay for the thousands of additional incarcerations.
One idea of handling repeat offenders is extremely harsh, but might serve to get a person to question their behavior. When someone is arrested for DUI for the second offense, they forfeit their vehicle. Another under consideration is that third time offenders should go to jail as soon as they are convicted. Benson was due to report to jail on May 9. The accident that claimed the four lives happened just two days after his sentencing.
Racine County District Attorney Mike Nieskes told the Journal-Sentinel that the culture in Wisconsin has to change.
“Even building more jails and prisons alone is not going to solve the problem,” Nieskes said in the Journal-Sentinel story “The problem is much larger than locking additional people up. It is not a ship that can be turned around quickly.”
The newspaper reported some shocking statistics. There were 7,952 convictions in the state for drivers with five or more offenses. That number gets even bigger for offenders with three or more convictions, as 45,721 fall into that category. The workload for the criminal justice system would increase dramatically if we were to lock the door and throw away the key. Currently in Wisconsin, the fifth conviction is considered a felony and carries a prison sentence. That law changed about 10 years ago, but before the change, any DUI, not matter how many times it occurred, was a misdemeanor.
If Wisconsin were to look at other states as a model, they could make the third offense a felony, like half the country. A fourth offense is a felony in 14 other states, while six states make the second offense a felony. The current population behind bars in Wisconsin is over 22,000. Adding three time offenders could potentially raise that to over 67,000.
I agree with Nieskes. The problem isn’t going to go away unless there is a major shift in the culture. As a society, we need to re-examine this situation and come up with alternatives to prison. Prevention is a major initiative, as schools, law enforcement and organizations such as Mothers Against Drunk Driving do good work in educating kids and adults alike. But it isn’t enough. People have to take responsibility themselves, not only for their own behavior, but for the irrational behavior of others. It’s our problem and sitting back and waiting for government to act isn’t going to help. It’s time we all said “no more.” Do your part and try to take away the car keys, call local drug and alcohol treatment centers for their help, but most of all, look forward and educate people on the dangers of DUI.
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