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Top Stories

Take Me To Jail, Please

December 31, 1969 posted by Steve Brownstein

by Brandi Grissom

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.

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 getting counseling, they’re not getting treatment,” Alpert says.

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.

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.