Judges, as a rule, don’t toss first-time drunken drivers in jail for weeks.
But that rule doesn’t apply in the courtroom of 48th District Judge Kimberly Small, who routinely jails such offenders — often for 14 to 30 days or more — even when they have relatively low blood-alcohol levels.
Small, who has been on the bench in Oakland County for 15 years, is an anomaly nationwide. She isn’t the only judge who orders jail for drunken drivers, but her sentences are longer.
A Free Press survey of all 50 states found that most judges sentence first-time drunken drivers to time served (from their arrest), work release or a weekend in jail, along with probation and community service. Some states mandate jail time, but never longer than a few days.
In metro Detroit, a handful of judges order jail time for first-time offenders, particularly those with high levels of alcohol in their blood. But the sentences almost never stretch into weeks or a month.
Small makes no apologies.
“Nobody ever thinks you’re going to kill somebody,” she told the Free Press. “To me, it’s all about protecting the public.”
But Small’s critics say her approach is excessive and her sentences aren’t an effective deterrent for keeping first-time offenders from repeating their mistake.
“It’s so that she can say she’s tough on crime,” said veteran defense attorney Cyril Hall, who says he will no longer represent clients in Small’s courtroom because he can do nothing to help them.
Judge’s tough DUI sentences out of step
The woman standing before Judge Kimberly Small had never been in trouble before.
The judge asked how much she had to drink.
Too much, she admitted. She was with friends and thought she was just tired when she got behind the wheel.
The woman, in her 50s and arrested for the first time for driving while intoxicated, promised it would never happen again.
Small responded with a lengthy lecture, waving a stack of newspaper clippings she keeps on the bench detailing drunken-driving deaths.
As the woman pleaded with her, Small rendered her sentence — 17 days in the Oakland County Jail. The woman, by then crying, handed her purse to her husband and was handcuffed and transported to join 1,200 other inmates for more than two weeks.
That scenario, played out earlier this summer in 48th District Court in Bloomfield Township, is common in Small’s courtroom.
The veteran judge sends almost every drunken-driving defendant to jail, including first-time offenders with low blood-alcohol levels. On Wednesday, she will sentence former University of Michigan basketball star Jalen Rose, who pleaded guilty to driving drunk and rolling his SUV in March in West Bloomfield.
Small doesn’t offer second chances, and she makes no apology for that.
“I don’t believe people have the right to roll the dice with other people’s lives,” she said. “Not when you get behind the wheel of a 2-ton vehicle.”
Small insists she’s not a prohibitionist, acknowledging she enjoys a glass of wine. But she wants people thinking about the consequences before they begin drinking, not after. Simple planning — such as arranging a designated driver or abstaining — makes the roads safer, she said.
“Otherwise, we’re just dealing with the consequences,” Small said.
JAIL SEEN TO BE INEFFECTIVE
National research suggests jail time for first-time offenders doesn’t influence whether they will do it again.
“The studies show it has no impact,” said James Fell, senior program director for the Alcohol, Policy and Safety Research Center in Maryland. “Jail is really only an effective tool if it is used as a threat to make the drunk driver comply with other orders for probation, treatment, community service, alcohol testing.”
The National Highway Traffic Safety Administration and National Institute on Alcohol Abuse and Alcoholism agree. The organizations issued a 2006 manual of sentencing guidelines used by drunken-driving courts nationwide.
“The available evidence suggests that as a specific deterrent, jail terms are extremely costly and no more effective in reducing (drunken-driving) recidivism,” the manual notes, adding that one study found “two days in jail may have a specific deterrent effect and may be more effective than a two-week sentence … for first-time offenders.”
Instead, the manual suggests several sanctions, including the use of ignition interlock devices that require offenders to blow into a device that prevents the car from starting if the driver has been drinking.
Mothers Against Drunk Driving (MADD) said those devices are the leading tool in stopping drunken driving.
“There needs to be that threat of incarceration because drunk driving is a crime,” said Frank Harris, the state legislative affairs manager for the national MADD office. “But we are finding the most effective way is to have the ignition interlock.”
Small said therapy, community service and impounding or disabling vehicles aren’t enough of a deterrent or punishment. “I’m not interested in a slap on the hand,” she said.
Jail time has other supporters, too.
“Those charged with this offense are a serious threat to the public,” said Paul Walton, Oakland County’s chief assistant prosecutor.
ONE CASE IS DIFFERENT
Records show that although Small’s average jail sentences for drunken drivers exceed those of other judges, she doesn’t put every defendant behind bars.
In one case, Small declined to send a Southfield woman to jail even after her second arrest. The first time, she had a blood-alcohol level of 0.14% when her vehicle struck another driver’s car. Five months later, while on bond, she was arrested after she took a Breathalyzer test that showed a blood-alcohol level of 0.17%.
Small ordered the woman held on a $250,000 bond, which the judge said was an attempt to keep the woman in jail. A circuit court judge released her, and she was sent to an inpatient program.
In April 2008, 20 months after the woman’s first arrest, Small sentenced her to the nine days she had already spent in jail and ordered her to wear an electronic tether. Under Michigan sentencing guidelines, Small could have jailed her for up to a year.
“Contrary to public belief, I hate putting people in jail … I know some of your family members, you know that. I grew up in the same community with you,” Small told her, according to the court transcript. “Your sister and I have known each other since we were — oh gosh, a long time … a very long time.”
Asked about the case, Small said it was unfair to “cherry pick a single case” out of the thousands she has handled. She said she hadn’t seen the defendant’s sister in several years and also noted the woman had completed addiction therapy when she was sentenced.
“I evaluate every case that comes before me,” she said.
‘IT’S UNHEARD OF’
The Free Press reviewed drunken-driving laws for all 50 states and contacted attorneys in dozens of states. The vast majority don’t have jail time for first offenses.
A few states have mandatory jail sentences, with the highest in Alaska at 72 hours. Conversely, Mississippi doesn’t permit more than two days.
“It’s unheard of,” Jason Lieber, an attorney specializing in impaired-driving cases in Los Angeles, said of jail sentences exceeding a few days for first-time offenders.
In some L.A. courts, first-time DUI offenders are allowed to plead guilty to speeding violations and are fined $500, Lieber said. “There isn’t a courthouse in southern California that would put a first-time offender in jail,” he said.
In Seattle, attorney Geoffrey Burg has been handling drunken-driving cases since 1994 and couldn’t recall a first-time offender going to jail for multiple days. Washington law requires one day in jail or 15 days on an electronic tether.
In Washington and California, defendants can ask for another judge. “That’s what we’d being doing if we had a judge like that,” Burg said.
Oakland County defense attorney Cyril Hall said he will no longer represent clients in Small’s courtroom.
“There is no reason for a lawyer to be there because no matter how strong you advocate, regardless of the facts of your case, they’re still going to jail,” Hall said. “I’m not going to take a client’s money when I know I can’t help.”
Small disputed that, saying she takes into account everything attorneys say in her courtroom.
Small said she’s been influenced by the suffering of families and friends who have lost loved ones to drunken drivers. At a recent MADD memorial, she was asked to read a list of those who died and listened as sobs erupted in the crowd.
“We have to decide if we’re going to get serious about this or not,” she said.