When it comes to sentencing drunk drivers, Montgomery County Circuit Court Judge Stanley B. Frosh goes against the rising call for tougher punishment. None of the 27 defendants who have appeared before him this year on charges of driving while intoxicated or driving under the influence of alcohol has served time in jail, court records show.
The reason, according to the judge, is simple: "Jail is not the answer," because Montgomery County jails generally do not offer adequate rehabilitation for those who are arrested for drunk driving. That policy led to a heated dispute this month with county prosecutors.
Frosh, 66, also opposes jail terms for drunk drivers because it interferes with their ability to earn a living, subjects them to "the kind of dangers that are inherent in our prisons" and adds to the pressure on communities to build more jails.
"There are other ways of handling this problem," Frosh said. He said he typically orders the defendant to participate in a therapy program, such as Alcoholics Anonymous. If the person fails to do that, he or she runs the risk of going to jail for failing to comply with court orders, the judge said.
Yet Frosh said he cannot remember the last time he sentenced a drunk driver to jail, nor does he recall ever sending a drunk driver to jail for violating probation terms.
"I probably never have done it in 10 years," said Frosh, who was appointed to the Circuit Court in 1975.
Frosh, who once served as chairman of the Montgomery County American Civil Liberties Union, generally is regarded by county lawyers as the most lenient of Montgomery County's judges when it comes to sentencing defendants who come before him -- whether they are charged with drunk driving or other offenses.
Frosh's attempt to prescribe therapy rather than jail in one recent case is drawing fire from Montgomery County State's Attorney Andrew L. Sonner and Mothers Against Drunk Driving (MADD).
At issue in the dispute is whether the defendant, Richard Allen York, a 28-year-old Navy Yard maintenance man who has pleaded guilty to driving while intoxicated for a second time in less than five years, should go to jail.
Assistant State's Attorney Robert Dean argued in an Aug. 14 hearing before Frosh that York should be sentenced to a jail term to be served on weekends, "because second offenders who drive drunk need to be punished, because it's slaughter on the highways."
York's attorney, Richard Ehrlick, argued that neither of York's DWI offenses involved personal injury. Ehrlick added that weekend jail time would interfere with the irregular hours that York works at the Navy Yard. The attorney described York as a "blue-collar, honest, good, hard-working fellow trying to get by . . . . He is not a rich man. He is not a man with influential friends. He is not a man with resources in high places to go to bat for him."
Frosh, after listening to both sides, announced that he was postponing York's sentencing for 90 days. Meanwhile, he said, York must attend AA meetings at least three times a week.
"I perceive nothing as far as jail is concerned that is at all rehabilitative as far as Mr. York is concerned . . . ," Frosh said at the hearing. "It is applying a punitive measure to what is in reality a sickness . . . . "
Friday, in an extensive interview about the details of the York case as well as his general philosophy about the problem of drunk drivers, Frosh said, "I will keep him under my own probation program as long as necessary."
Eventually, Frosh said, he will enter York's guilty plea on his record and suspend the sentence. "But I still wouldn't send him to jail," he said.
Frosh's policies have resulted in a continuing clash with Sonner, an aggressive prosecutor who believes that jail deters crime. Frosh takes pride in his "compassionate" tradition of sentencing.
Two years ago Sonner lambasted Frosh for ordering a new trial for a convicted rapist and then tried to have the decision overturned by an appeals court. A three-judge panel reinstated the conviction, but the Court of Appeals later ruled that Frosh's order granting the motion could not be appealed.
This year Sonner criticized Frosh for giving a two-year prison sentence to a man convicted of 11 criminal charges stemming from a car theft and an ensuing chase that left two police officers seriously injured.
Observers say Sonner was upset this summer when he was not nominated -- but Frosh was -- for the governor's consideration for a position on the Court of Special Appeals.
This month Sonner objected to Frosh's handling of York's case. At the hearing, Frosh indicated that he wanted to give York probation before judgment, which is allowed under Maryland law for first-time offenders convicted of drunk driving. Second-time offenders, such as York, are ineligible for probation before judgment.
Frosh said Friday that he "struck that probation before judgment finding" for York after the prosecution complained. But the action did not occur before Sonner accused Frosh of "seeking to give a sentence that isn't permitted by law."
"It seems to me a good judge would say, ' . . . I am going to do my best to uphold the law, not to try to get around it,' " Sonner said.
The prosecutor was not the only one raising questions about Frosh's sentencing practices, however.
Paul Daley, a former president of the Montgomery County Chapter of MADD, said that jail is the answer, at least some of the time, to the drunk-driving problem.
"A sentence should rehabilitate, deter and punish," said Daley, whose son was killed in an accident involving a drunk driver. "People are afraid to go to jail, and so it is a deterrent."
Daley said that judges are "our weakest link in the system" in trying to solve the problem caused by drunk drivers, because "judges flat don't think it's a big deal."
That conclusion, Daley said, was based primarily on a MADD study of 2,900 Montgomery County District Court convictions for driving while intoxicated and driving while under the influence of alcohol. The convictions covered December 1981 to October 1983, he said.
Of the 1,030 DWI convictions in the study, 652 defendants received jail sentences, he said, although the sentences of more than 500 defendants were suspended.
The time that the defendants spent in jail was minimal, the study found. Daley said that 68 of them served 30 days or less; 15 served 31 to 60 days, 20 served 61 to 360 days and 11 served the maximum 365 days permitted by law.
The crackdown on drunk drivers, which began in 1980 with the formation of groups like MADD, has led to tougher laws against drunk driving, sobriety checkpoints by police and an expansion of treatment programs for drunk drivers.
Montgomery County government officials and police have made deterring drunk driving a high priority, officials said last week, and the county offers treatment programs through the detention center and a prerelease program.
But Frosh contends that those programs are so limited in size that they cannot handle all of the estimated 5,000 persons who are expected to be arrested this year in Montgomery County for drunk driving.
Charles Short, the director of the county's department of family resources, agreed that the county's ability to treat alcoholics in the 400-bed detention center is "very limited at this time." The detention center "is not the place to go if you want to provide therapy for the person. If you want to punish him, it is the place," he said. Short added that the 100-bed prerelease center offers a range of therapy programs for those with chronic drinking problems.
Frosh noted that to get persons into those programs, however, they have to be convicted. "And the minute you convict someone, you have to some degree placed a black mark on their record," he said.
That does not mean that some drunk drivers should not be punished, Frosh said. But jail, he added, should be used only when the person "is dangerous and should be somewhere where he isn't a menace to society -- I have no problem with jail under those circumstances. But I don't think you have to put on all the Band-Aids in the hospital. There are alternatives to jail."
One alternative, he said, would be to establish more programs like one that opened in Prince George's County Aug. 2. The program's facility, which is the first of its kind in the nation, combines incarceration and treatment of DWI offenders in a specialized structure.
Frosh said Montgomery County could easily convert unused public schools into minimum-security institutions for persons arrested for drunk driving. The facilities would provide a place to monitor those people and provide therapy for them before and after their court appearances, he said, and the facilities would allow them to continue their regular jobs.
They would pay room and board, he added.
"When I lecture, most people are in hearty agreement with this plan , and when I write, I get a lot of comment that it is a great idea," he said. "But nothing ever happens."
Until it does, Frosh said, he intends to keep tailoring therapy programs for the drunk drivers who come before him, giving them probationary sentences and keeping them on probation until the therapy is effective.