Chicago — No question but that the young driver was genuinely remorseful. He had been drinking to celebrate ''A'' grades in college. But during an joy ride afterwards, his car hit two others, injuring four people and killing one. His plea was guilty, and he lost his license for a year. Instead of jail, however, he drew two years' probation. Instead of a fine, he paid only $72 in court costs.
Rich Binning of Elgin, Ill., who had just started a business with his son before the son was killed in the crash, says he appreciates the driver's attitude - ''I've seen other cases where there was no remorse whatsoever'' - but considers the sentence too lenient. He blames society as much as the judge.
''I think the courtroom is a reflection of what the judiciary thinks society really wants - regardless of what the laws are,'' he says. ''And as long as there's an attitude in this country that going out and getting drunk or high is the thing to do . . . most driving-while-intoxicated cases aren't going to be treated with the seriousness they deserve.''
Some call it the gaping judicial loophole in the current crackdown on drunken driving in the United States.
At the very least, the courts, according to many prosecutors, police, and victims' families, have been lagging far behind most other efforts, from the growth of concerned-citizens groups to strengthened laws.
A recent National Safety Council study reports that 39 states have passed tougher penalties for drunken-driving offenses just this year - some on the heels of changes made just last year. And though only an estimated 1 of every 500 drunken drivers is actually stopped by police, arrests are decidedly up. Those in New York City went up 51 percent last year, while Illinois's increase was 68 percent.
Some argue that the jump in arrests is one reason judges have not been coming down harder on drunken drivers. They add to the bottleneck in an already-clogged court schedule. Accordingly, many such cases are plea-bargained and disposed of as routine traffic violations.
Rarely do judges impose maximum or even mandatory penalties. First offenders on drunken-driving charges almost never go to jail and seldom lose their licenses.
The most common penalty is a modest fine and court supervision, a charge that means little and is erased from the driver's record unless arrested again on similar charges within the supervision period.
If someone is killed in a drunken-driving incident, the case moves from traffic court to criminal court, where it is usually classified as reckless homicide, the least serious felony.
Most who accuse the courts of foot-dragging on drunken-driving cases say the reasons for the soft action go beyond crowded dockets to such problems as overcrowded prisons, as well as judges' and juries' empathy for defendants who are cleaned up and no longer drunk and whose tale of woe they hear in detail. Many doing the judging drink socially themselves and have doubts as to how deserved and deterring tough sentences are.
But Transportation Secretary Elizabeth Hanford Dole expressed no such doubts at all. In releasing a US Department Transportation study last August that noted widespread disparity between drunken-driver penalties on paper and in practice in all 50 states, she said, ''Because the risk of arrest and punishment is low, the deterrent effect of the laws is diminished.''
''A certain percentage of people break the law because they think they can get away with it,'' agrees David Osborn, president of an Illinois grass-roots group called Alliance Against Intoxicated Motorists (AAIM). Those whose spouses are about to be convicted for the third or fourth time of drunken driving have called him to voice concern that their spouses may be released again without losing their licenses.
Mr. Osborn, whose brother was killed two years ago by a drunken driver in Indiana, refuses to classify drunken-driving mishaps as accidents. ''They're too predictable,'' he says.
''We have to decide as a society that we're going to be accountable for our actions under all circumstances. And judges need to realize that their role is not just to protect the defendant from the mean, terrible state, but to protect the general public as well,'' Osborn adds.
''There's been a tremendous gap in the court perception of what the public wants in drunken-driving cases and what's been happening,'' says AAIM founder Carol Golin. ''Any number of surveys show that most people want tougher treatment. Yet judges seem somehow to have been insulated from this. The courts haven't been 'user friendly.' Victims' rights have generally not been respected.''
But some law-enforcement officials, such as Montgomery County, Md., state's attorney Andrew Sonner say that much of the judicial criticism is unfair. He says that first offenses under any criminal law rarely lead to jail and that maximum penalties are seldom imposed for any crime.
Still, citizen groups such as AAIM view court monitoring and work to increase judicial awareness of society's views on drunken-driving as key parts of their educational mission. And they say they are making progress.
Jeffrey Lyon, who works as a part-time prosecutor for the city of Morton Grove, Ill., and handles hundreds of drunken-driving cases, says he's seen a ''dramatic'' change in many Chicago-area judges in recent years. Most now insist on higher fines, he says, and evaluation of a driver's drinking problem, including rehabilitation, if needed.
''I think judges are beginning to see what happens if they don't (impose these penalties). They realize people are watching.''
Even state's attorney Sonner, who comes from an area where police roadblocks to deter drunken drivers have been operating with increasing effectiveness, admits to seeing some major changes in court treatment of convicted drunken drivers in the last few years.
''There has been an increase in the number of defendants going to jail on second and third offenses,'' he says. ''And there have been longer sentences and larger fines. I think generally the judges are right on target.''
Volunteers of AAIM, founded just two years ago, will go to court with any victim and stay with a case to the end. Members of the group say that kind of continued interest and visible presence can make a difference in the ruling. Important, too, and rarely used, they say, is the opportunity for the victim's family to file a statement before sentencing on how the drunken-driving incident has affected home life.
Carol Golin, who filed such a statement after her daughter was killed by a drunken driver in a crash two years ago, says she thinks the statement was a major factor in the two-year sentence awarded. (Three years is the maximum possible.) ''We argued that there was a certain amount of intent - the driver knows before he drinks what can happen if he mixes alcohol and driving.''
Most concerned police, citizens, and prosecutors also argue that tougher laws , even if not followed in full, can prod courts to give stiffer sentences. Most of them applaud such trends as on-the-spot seizure of licenses by police if the driver's alcohol-blood content is higher than the legal limit (13 states now allow this), community service as an alternative to jail, and more referrals to treatment programs. And some, like Chicago lawyer Wendy Muchman, whose brother was killed in a drunken-driving accident, argue that reckless homicide should be upgraded to a higher class of felony with a stiffer penalty.
Yet most of these same crusaders for change concede that better laws are only a short-term answer. Educating the public to prevent more such incidents in the first place holds more potential.
''A driver's reasoning shouldn't be just that he might get caught or that it could be costly,'' insists Rich Binning. ''It should be that morally he has an obligation not to endanger someone else's life like that or to put his own family in jeopardy.''