Drinking Games

Souksangouane Phengsene and Nicole Gebeck were both convicted of vehicular homicide. One of them is going to prison.

Shortly after 11:00 p.m. on February 16, Nicole Gebeck drove the wrong way down Interstate 94 west out of Minneapolis. She collided head-on with Stanley Croissant, a 36-year-old father of two, killing him instantly. Gebeck had a blood alcohol level of .25, more than twice the legal limit--which, in the state of Minnesota, is .10.

About 4:00 a.m. on May 20, Souksangouane Phengsene drove the wrong direction down Highway 100 in St. Louis Park. He collided head-on with Malik Sealy, the Minnesota Timberwolves forward and father of one, killing him instantly. Phengsene had a blood alcohol level of .19.

Last month Gebeck and Phengsene were both convicted of committing criminal vehicular homicide. Despite the striking similarity between their crimes, and state sentencing guidelines designed to ensure that everyone is treated the same under the law, the futures of Gebeck and Phengsene will be very different. Phengsene is to serve four years in prison. Gebeck will be back at work in two months.

"You want a certain sense of fairness in the system," says Hennepin County Attorney Amy Klobuchar, who met with Stanley Croissant's frustrated family and friends after the Gebeck sentence was handed down. "Because it discredits it for everyone if you have such close factual situations with such wildly different sentences."

Diane Krenz and Karel Moersfelder, the assistant county attorneys from Klobuchar's office who prosecuted Gebeck's case, actually lobbied Judge Stephen Aldrich to double the penalty called for in the sentencing guidelines--four years in prison--and put her behind bars for eight years. Their argument was that the defendant was not only very drunk but grossly reckless, having driven at close to 85 mph for nearly eight miles before the accident happened. The county attorney's office intends to appeal the judge's decision, arguing that there were not sufficient grounds to soften the sentence called for in the guidelines.

In the Sealy case, despite the high profile of the victim, the Hennepin County Attorney's Office sought a sentence of only four years in prison. The defense argued that Phengsene should not serve any prison time, citing the Gebeck case (which was decided eight days earlier) as a precedent, but to no avail.

The disparity in Gebeck's and Phengsene's sentencing stems from the ongoing debate over the nature of vehicular homicide itself. Prosecutors and victims'-rights advocates view it as murder with a car. Defense attorneys argue that vehicular homicide is a crime without any intent to do harm and that prison is the wrong place for offenders. "This person killed someone," argues Klobuchar. "They made a decision to go out and get drunk and get behind a wheel. That decision is as much of a personal-responsibility decision as someone packing a gun. In their hands that car is like a gun."

"Prisons are not rehabilitative places," counters Frederic Bruno, Gebeck's attorney. "They're places for punishment: There's drugs, there's alcohol, there's sodomy. To want that to happen to somebody who never intended to hurt anybody is not justice. What separates [Gebeck] from hundreds of people driving down the road every night is luck--bad luck."

For decades the judicial system has treated vehicular homicide much the way Bruno would have it: as a cosmic mistake, something that could happen to anyone. But in recent years, prosecutors and judges, under pressure from victims'-rights advocates and organizations such as Mothers Against Drunk Driving, have altered the way they approach the crime. In 1994 the Minnesota Sentencing Guidelines Commission changed criminal vehicular homicide from a level-six to a level-seven crime. In concrete terms, this means that the recommended sentence for someone with no previous felony convictions jumped from no prison time to four years.

Other states have become even tougher, often charging people with first- or second-degree murder in such cases. In North Carolina, for example, drivers have been given life sentences for vehicular homicide, and the possibility of imposing capital punishment has even been broached.

"I have seen and started to report nationwide that there is more of an inclination by prosecutors to charge these very egregious types of crimes as murder charges," notes James Campbell, former dean of the National College for DUI Defense. "It literally is not, but because of the public's attitude and the turmoil that gets people worked up over these cases, that's what they end up doing."

"I believe that judges and the public are starting to see these cases differently, and that's a good thing," Klobuchar maintains. "But historically, when you go back, I think they just said, 'Well, it's a drunk-driving case. This guy was drunk, he didn't mean to do it, and oh, someone died.' ...If we used that standard in all of our cases, I guess we wouldn't prosecute anyone."

Despite the national trend toward harsher penalties, Minnesota judges often deviate from the guidelines in vehicular-homicide cases. According to figures from the Minnesota Sentencing Guidelines Commission, in 56 percent of such cases from 1996 to 1998 (the most recent numbers available), judges did not impose a prison sentence. In Hennepin County the figures are slightly different: Since the beginning of 1999, just 35 percent of defendants convicted in vehicular homicide cases have avoided serving prison time. In contrast 75 percent of all felons convicted in 1998 received the sentence recommended under the guidelines.

Klobuchar speculates that one reason for the high rate of departure in vehicular-homicide cases is that the defendants are more likely to be white and to have no previous criminal record. "I think that makes people step back and look at those cases differently, which isn't necessarily fair," she notes. Of the 106 people prosecuted for criminal vehicular homicide in Minnesota from 1996 to 1998, 90 of them were white.

Judges admit they find cases involving vehicular homicide to be excruciating. Hennepin County Chief Judge Kevin Burke recalls the first such case he ever presided over. A twentysomething man was drunk and hit an embankment, killing his girlfriend in the process. He was found guilty, and Burke agonized over what the proper punishment was for someone who had already lost his best friend. "I tossed and turned the night before," Burke recalls. "What's the right thing to do?" The next morning Burke found out that the decision had been made for him: the defendant had killed himself. "This is a horrible crime, and I don't want to minimize at all the damage that people like these two people do, but it's a hard decision sometimes," Burke concludes.

Judge Stephen Aldrich has been pilloried in the press for his decision in the Gebeck case. But the sentence that he imposed is a complicated one. While Gebeck was not sentenced to any prison time, she will be detained for a year in the Hennepin County Workhouse. After 60 days served Gebeck will then be eligible for work release and Saturday-morning furloughs. After 275 days she will be released, but for the next five years she must return on the anniversary of her sentencing for an 18-day stay at the workhouse.

Gebeck is also required to abstain from drinking, regularly attend Alcoholics Anonymous meetings, perform 480 hours of community service at an alcohol-abuse treatment facility, pay a fine of $6,000 to the victim's family, and use special license plates that identify her as someone with repeated alcohol-related convictions. Gebeck will be on probation for ten years. If she violates that probation, she faces six years in prison. "I intend to control her life for a long time to come in a variety of ways," Aldrich said at the sentencing hearing.

In contrast, Phengsene will be beyond the state's control after four years.

Judge Aldrich declined to be interviewed for this story, citing two recent instances where judges have been reprimanded for discussing cases in the media; however, when judges depart from sentencing guidelines, they are required to issue a written statement justifying their actions.

In that statement, released last week, Aldrich cites the work of William White, a Bloomington, Illinois, drug and alcohol researcher with the Lighthouse Institute/Chestnut Health Systems. "That research indicates that, as a general rule, long prison and jail sentences do little to deter the drunken driving which caused...the death of Stanley Croissant," Aldrich writes. He goes on to note that, according to White's research, "what works to reduce repeat drunken driving is a combination of jail and other sanctions, given in multiple doses, over an extended period of time."

Another factor that Aldrich cites in his sentence is that Croissant himself was legally drunk at the time of the accident, with a blood alcohol reading of .10. Aldrich notes that both the Hennepin County Medical Examiner's Office and the Minnesota Highway Patrol cited Croissant's intoxication as a secondary factor in his death.

"Despite public clamor for punishment or unnamed 'consequences,' public safety is better served by long-term control of this defendant," Aldrich concludes.

Aldrich's arguments will do little to persuade the family of Stanley Croissant that Gebeck's punishment fits her crime. Croissant was a father of two who coached his daughter's basketball team. He was set to be married just two days after the accident. And Theresa Croissant, Stanley's mother, says that Gebeck had already had an opportunity to be rehabilitated, when she was convicted of drunk driving seven years ago. "She had her chance," says Croissant. "I just think she should have done time."

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