Promising Sentencing Practice No. 2
Staggered Sentencing

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By Judge James E. Dehn (Minnesota)

Overview
Courts lacking the financial resources or system cooperation to develop a DWI/drug court (see Promising Sentencing Practice No. 1) may consider staggered sentencing. Staggered sentencing is a proven, low-cost, judge-driven program, devised by Minnesota Judge James E. Dehn (a rural judge who sits in multiple Minnesota counties), to reduce recidivism by repeat DWI offenders.

Staggered sentencing in DWI cases has been used by judges in Minnesota for several years. This program received the 2003 Robert Chapman Award from the Foundation for the Improvement of Justice. It has also received critical review from Time Magazine,25 and has been analyzed by Hamline University Law School.26 Based on a detailed review of the program by the Minnesota Legislature House Research Department, which noted its effectiveness,27 the Minnesota legislature codified staggered sentencing into statutory law in 2003.28

Research shows that Minnesota offenders who are given staggered sentences are re-arrested for DWI at only 50 percent of the rate that would be expected based on the recidivism rates of comparable DWI offenders sentenced by all other Minnesota courts. The program also has resulted in 66 percent less incarceration time for the great majority of offenders who successfully comply with the program’s conditions of release, thereby resulting in considerable jail cost savings. While these studies are promising, more studies need to be conducted to assess the effectiveness of this promising sentencing innovation.

What Is Staggered Sentencing?
Staggered sentencing consists of four key aspects:

  1. A Staggered Incarceration Period
    Generally, when a court convicts an offender of a repeat DWI and sentences the offender to a period of incarceration, the court orders that the incarceration period is to begin on a given date and is to run continuously until it is completed. With staggered sentencing, the court places the offender on probation for a specified time period, and orders a period of incarceration to be served in two or more installments occurring during the probation period. These installments are spaced several months to one year apart. The offender must serve the first incarceration segment immediately or soon after the sentencing date, and is advised by the court of the dates on which the offender must begin serving subsequent incarceration segments.29

  2. Active Participation by the Offender
    If the offender can maintain sobriety, as shown through input from the offender’s probation officer, family, friends, AA sponsor, and employer, the offender may request a waiver of the next segment of incarceration by filing a motion with the court a specified number of days before the scheduled commencement of this segment. This motion may only be brought before the sentencing judge. This one judge/one defendant model enables the judge to develop a consistency and rapport not only with the offender, but also with family members who may accompany the offender to court.

    The true innovation of this program may well be the act of giving an offender responsibility for altering the course of future consequences. Unlike traditional probation – a system under which offenders receive additional consequences for program failures – the court informs offenders that their successes will allow the court to give the offenders additional control over their lives. Under staggered sentencing, offenders retain the responsibility for achieving the conditions of probation, scheduling court motion hearings, and convincing the court that they have adopted lifestyle changes that significantly lessen their chances of further recidivism.

    An offender who does not file the required motion requesting a hearing must report to serve the next incarceration segment as scheduled. No hearing is required. A failure to appear to serve an incarceration segment is a probation violation, which could result in the court imposing additional sanctions.

  3. Home Electronic Alcohol Monitoring (HEM)
    At the initial sentencing hearing, the court also orders Home Electronic Alcohol Monitoring (HEM), typically in segments of 30 days per year. HEM is a non-house-arrest program that allows the offender to carry on normal daily activities. However, three times a day (generally, early morning, an hour after work, and late at night), the offender must be at home to provide a breath sample into a video monitoring unit, connected to the phone line. A positive test for alcohol usage or a failure to test at a designated time constitutes a probation violation, and requires the offender to be brought before the sentencing judge immediately.

    The staggered sentencing model tailors the frequency and timing of the monitoring to the offender’s specific circumstances. For example, some offenders require closer monitoring during the Christmas and New Year’s holiday period; others require closer monitoring during periods of unemployment.

    If the offender can maintain sobriety, as shown through input from the offender’s probation officer, family, friends, AA sponsor, and employer, the offender may request a waiver of the next HEM segment by filing a motion with the court a specified number of days before the scheduled commencement of this segment. In considering the motion, the court places heavy reliance on the monitoring results.

  4. Clearly Articulated Consequences for Specific Violations
    At the initial sentencing hearing, the court advises the offender of the tremendous rewards to be gained by sobriety but also warns of the penalties that it will assess if the offender fails to remain sober or is again charged with DWI. The court typically informs an offender that any arrest for a new DWI violation will result in the revocation of the offender’s probation and immediate incarceration for the entire period of the remaining stayed sentence. The court also typically informs the offender that any violation of the other conditions of probation – such as alcohol abstinence, completion of treatment, or payment of fines – will result in the execution of the next segment of incarceration that the court has already ordered the offender to serve. This “carrot and stick” approach has been very effective for the participants, as they leave the courtroom with a clear message and understanding.

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Effectiveness of Staggered Sentencing
The Minnesota Legislature House Research Department has evaluated the effectiveness of staggered sentencing in reducing repeat DWI offenses.30 The initial results of this study suggest that staggered sentencing may be effective in reducing DWI recidivism. The study tracked over 50,000 days of the first 61 DWI offenders (tracked up to 4 years) who had received staggered sentences from Judge Dehn. The research revealed that these offenders experienced 49.9 percent less DWI recidivism than would otherwise be expected based on statewide recidivism rates for comparable DWI offenders in the same time frame.

In addition to the direct and indirect cost savings associated with the reduced recidivism, the research report showed a substantial direct cost savings associated with reduced incarceration terms. The research report showed that the court waived, on average, approximately 52 days of incarceration time for offenders who were successful under staggered sentencing. At the approximate per diem jail cost of $70/day (a conservative estimate), the 52 days that were waived resulted in a direct jail cost savings of over $3,500 per successful offender. In total, over 3,000 days of jail time were waived (a cost savings of over $210,000), for the first 60 offenders in the program. In addition, the nearly 50 percent reduction in recidivism translates into future law enforcement, judicial, and correctional cost savings.

While the findings of the House Research Department report are preliminary until confirmed by further application and analysis, they have been codified into Minnesota law.31 Minnesota judges are reporting the same results that Judge Dehn has experienced. If these findings are confirmed and courts throughout the country broadly adopt staggered sentencing, this could possibly help reduce fiscal burdens for local governments, while simultaneously enhancing traffic safety. This in turn will help alleviate pressure on State correctional budgets, by freeing up local jail space. Staggered sentencing may have the potential for broader application with other chemically involved offenders who are arrested for other types of crimes, such as low-level drug offenders and domestic abuse offenders. Judge Dehn has begun to extend staggered sentencing to these areas.

 
25 April 29, 2002, Notebook.
26 See Carlisle, A., “Staggered Sentencing for Repeat DWI Offenders: A New Weapon in the War Against Drunk Driving,” Hamline Journal of Public Law & Policy, Vol. 25, No. 1, pp. 87-113 (Fall 2003).
27 See www.house.leg.state.mn.us/hrd/issinfo/crime.htm.
28 See Minn. Stat. § 169A.275.
29 While 23 U.S.C. §164 allows for non-continuous imprisonment, the mandatory minimum term of imprisonment must be served. Otherwise, the State risks losing
Federal highway funding.
30 See Cleary, Jim, “Controlling Repeat DWI Offenders with Staggered Sentencing,” http://www.house.leg.state.mn.us/hrd/pubs/stagsent.pdf, Minnesota House of Representatives (2003).
31 See Minn. Stat. §169A.275.