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The case for taking away some people's right to drink

States can take away a driver's license for drunk driving. What if they could go a step further, and stop the driver from drinking altogether?

This idea could tackle a broader problem than drunk driving: Alcohol abuse causes 88,000 deaths each year, is linked to 40 percent of violent crimes in the US, and led to more than 4.6 million emergency room visits in 2010.

To lower those numbers, one state has started to take the right to drink away from those who repeatedly show they cannot consume alcohol safely, like repeat drunk drivers. Since 2005, South Dakota has used a 24/7 Sobriety Program, which allows judges to temporarily order sobriety for those type of offenders. Police have different ways to monitor drinking, such as regular check-ins at a station or even a bracelet that can track blood alcohol level. But the idea is to always punish a violation or a missed test with a night or two in jail — to create a very credible deterrent.

2013 study that compared counties with and without the 24/7 Sobriety Program attributed a 12 percent reduction in repeat DUI arrests and a 9 percent reduction in domestic violence arrests at the county level to the program — although the evidence was mixed on whether it reduced traffic accidents.

While the research on the 24/7 Sobriety Program for alcohol is early and mostly limited to the program in South Dakota, the results so far are promising. Beau Kilmer, a senior policy researcher at the RAND Corporation and author of the 2013 study, said these results should be grounds for pilot testing the idea in other jurisdictions.

I spoke to Kilmer last week by phone about his research and the sobriety program. This interview has been edited for length and clarity.

How the 24/7 Sobriety Program works

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German Lopez: What do you mean when you say this program can suspend people's "license to drink"?

Beau Kilmer: In the United States, when you turn 21, you get an unconditional license to purchase and consume as much alcohol as you want. But if your alcohol consumption is causing you to threaten public health and public safety, shouldn't we take away your license to drink?

Think about it: For driving, people will take a test and get a license — but if you drive recklessly, we can take away your license to drive. So I've been thinking about this with respect to your license to consume alcohol — obviously, when I say license there, it's really in quotations.

What got me really thinking about this is the research I've been doing on the 24/7 Sobriety Program in South Dakota and some other states. The idea of ordering alcohol-involved offenders to abstain from alcohol or not go to bars, that's nothing new.

But oftentimes it was really hard to enforce it — because alcohol goes through the system so quickly. With illegal drugs, they stay in your system, so you don't have to test every single day. But in order to really monitor someone's alcohol consumption, it requires a lot of frequent testing.

So what was really unique about South Dakota is that when they told somebody that on condition of bail they're not allowed to go to bars and not allowed to drink, they actually enforced it. That's how the 24/7 Sobriety Program first started.

People would come in once in the morning and once at night every single day and blow into a breathalyzer. But if you look at everyone who's been in the program since 2005, it's roughly about 80 percent would do that. There's roughly about 15 to 20 percent that also wear the continuous alcohol-monitoring bracelets, which tests your sweat for alcohol every 30 minutes, stores that information, and via modem sends it to a private company that determines whether you've been drinking or tampering with the device.

Could this be expanded to urban areas?

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German Lopez: The biggest concern I can think of with this type of program is it could turn into an administrative nightmare or really costly. Is that one of the concerns for you as well?

Beau Kilmer: Yeah, that's a great point.

The research that we've done so far has shown that this is able to work in South Dakota. We're doing research right now on North Dakota. We published a preliminary analysis earlier this year on Montana also showing positive effects.

The real question to me is whether this can work in an urban area with a heterogeneous population. I think the evidence we've reviewed suggests that we should at least try some pilot programs.

But we have to keep in mind with these programs that they work because they create this credible deterrent threat. So if you were to just start this in a big city and you had a bunch of people violating and there were really no consequences for those violations, you're not going to have a credible deterrent threat, and the program isn't going to work.

So it's going to be resource-intensive at the beginning, especially if you're going to go out and pick people up for violations. But you have to think of this as an investment. It really is a public management issue. It might take a lot of resources early on, but once you create that credible deterrent threat, then you can start expanding the program — because if people believe there will be implications if they miss a test or fail, they'll be less likely to require extensive monitoring.

These monitoring technologies are also going to get cheaper and better and smaller over time. The alcohol-monitoring bracelets were cutting-edge about seven years ago. But they've already advanced. The new devices they have out now are called "remote breath," and they let you pull this thing out, you blow into it, and it has facial recognition software that can confirm that it's you. Within 60 seconds or so, your probation officer will have confirmation that you're blowing into this device, your blood alcohol content, and your GPS location.

How the program could be tested in other places

South Dakota is a very different place than New York City.

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German Lopez: When you say we should get this program going and tested in other places, how do you envision that?

Beau Kilmer: If you're going to start a program in a more urban area, you'd want to start small. You'd want to start with a small group of individuals, and really hit it home that if you do violate, there will be consequences.

So you'd want to start with a small group — maybe people that, for example, it's their third DUI. But the thing is you'd want to start small enough to where it won't be hard to create that credible deterrent threat to let people know that if you blow positive, you are going to spend that night or two in jail. And if you have somebody that doesn't show up, you're going to want somebody to go and get them — but that's really going to depend on the resources.

I remember doing some site visits in South Dakota. There was a woman who had gone drinking on Saturday night and didn't show up for her test on Sunday morning. But when I was there on Monday morning, she showed up with her toothbrush and prescription pills — she knew she'd spend less time in jail than if they had to pick her up for a warrant.

The thing that's interesting as we do more research on this is we're trying to get more information about the minimum level of punishment that you would need in order to change behavior. It may be the case that you don't even need incarceration — maybe there's something else that we could do, such as house arrest. I think that's where you're going to see a lot of the research focus on: Does it have to be a night in jail, or can it be five hours in jail?

Also, right now the way it's being implemented in South Dakota is the focus is on the stick instead of the carrot. But what if we were to bring in more of the carrot, such as positive incentives? There's a lot of research that we have in the treatment field that shows small items — movie passes, gift certificates to a fast-food restaurant — can actually change people's behavior with respect to substance use. In addition, these programs aren't mutually exclusive with treatment.

Could racially disparate enforcement become a problem in urban areas?

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German Lopez: Another concern is how this would be enforced in terms of race. We know that public drinking laws, for example, are enforced in a racially disparate way. To some extent, that's a problem in the criminal justice system in general — there are racial disparities in almost everything. But do you worry this program could worsen the problem, especially since it's untested in places that are more diverse?

Beau Kilmer: Well, what's nice about this program — and a lot of the work that's done in terms of swift, certain, and fair — is it's extremely transparent. They're holding everyone to the same standard. If you're in this program, this is what you have to do. And if you don't comply, this is the punishment, and there's no debate. There's no discretion here.

So I think to the extent you're worried about discretion leading to some of these issues, this program is the opposite of that. The idea is that this is focused on the swift, certain, and fair sanctions — it's focused on the certainty and celerity of the punishment rather than the severity.

In a lot of places, if you're out on probation and you're not supposed to be using drugs or drinking, oftentimes the probation officer will just give you a slap on the wrist the first few times if you get caught. The probation officer doesn't want to send you to prison for five years for a drinking violation. But after those things begin to accrue over time, it's almost kind of random when the probation officer decides, "You know what? We're done. I'm going to revoke your probation, and you're going to prison for a certain amount of time."

The 24/7 Sobriety Program is focused on trying to hold people accountable right away, and letting them know that's how it works.

Swift, certain, and fair programs could change the justice system

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German Lopez: You've mentioned this idea of swift, certain, and fair justice. What's the idea behind this? How is it better than how we dole out justice now?

Beau Kilmer: It's like parenting. You tell a kid to not take cookies from the cookie jar. You don't give them a slap on the wrist, a slap on the wrist, a slap on the wrist, and then give them a time-out for six weeks. But that's kind of what we do in our criminal justice system with respect to substance abuse — we say don't do this, don't do that, don't do that, and then all of a sudden after maybe the eighth failed test, we revoke their probation or parole and throw them in prison for years.

So the idea with the 24/7 Sobriety Program is we're certain and swift, but with a very moderate sanction. It increases transparency in the system, and people know what to expect.

German Lopez: So sticking with parenting analogy, the kid would always get a 30-minute or one-hour time-out if he took a cookie?

Beau Kilmer: Yeah. Something along those lines. But community corrections don't often operate like that, and that's why this is very different.