A little less than two years ago, now-18 year-old Ethan Couch was sentenced for an automobile collision he caused two years before, in which he killed four people. Four homicides might lead one to think at least a little jail time was in the offing, but what with "restorative justice" and a nifty psychologist's report, jail time was not to be. Instead, as the Washington Post reports:
Couch was sentenced to a drug-and-alcohol-free probation...; a psychologist and the teen's lawyers argued in his defense that the then-16-year-old's reckless behavior was a result of "affluenza."
I would love to have been a fly on the wall when the hired "psychologist" and the defense lawyer came up with that one. I could be drunk and stoned and contemplating for ten years and still not have ginned up "affluenza" (a "syndrome" created by wealthy parents who fail to enforce discipline). But I have never been a match for the creativity of the defense bar and its experts.
Anyway, this week brings us the news that, in the course of the sobered-up life his alleged "probation" was supposed to bring him, Mr. Couch took off for the super-plush resort of Puerto Vallarta, Mexico. This was after a home video surfaced of his playing a rugged game of beer pong. He and his mother, who was evidently financing this study in responsible living while staying with him, have now been taken into custody.
Lots of lessons here, but I'll settle for just two: First, letting a defense shrink tell the tale at sentencing isn't that good an idea; and second, a much better idea would be sharply cabining the discretion of judges so that, no matter how foolish or naive or (in some cases) bought-off they are, serious crimes will get serious sentences. There is no reason we should live with this sort of song-and-dance travesty of justice.
This exemplifies one of my favorite themes, that of "false compassion." (Professor Berman seemed perplexed by this concept when I brought it up in another thread.)
It's all relevant but the most important part starts at about 7:25: https://www.youtube.com/watch?v=Sog1oZtt-Q4
TarlsQtr,
I'm ashamed to admit that, for years, I resented my father for being so unforgiving with me as a child. It probably took me until my late 30's to understand that the real nature of parental love lies in forcing the kid to take responsibility. It does not come naturally to human beings. But once it develops, it is the one thing, more than anything else, that enables a person to have a successful life. Without my father's thoroughly unwanted discipline, I would be nowhere today.
I don't blame defense counsel so much for raising the affluenza defense. After all, they have been advancing disingenuous, half-baked, explanations to avoid the consequences of their client's actions for years. The jurist who bought this crap should be removed from the bench,juvenile court notwithstanding.
Once upon a time,there used to be a "laugh test" associated with a defendant's submissions. When that is gone, the barbarians are truly at the gate.
1. Thanks, Tarls, for here providing a link to a video which can help me better understand the concepts/themes you have in mind with "false compassion." I am eager to find the time to view the whole video and I would welcome more references for my review.
2. In light of your comments, Bill, I am eager to hear what you think should be the statutory mandatory minimum sentence that (1) Couch should have gotten for his initial crime, and/or (2) Couch should be subject to now, and/or (3) that his mother should be subject to. I am about to post about the interesting sentencing aspects of the crimes that this pair is not facing under Texas law, and I am genuinely interested in your specific sentencing thoughts on this specific case.
3. As both may know (and as federalist knows), I think our modern sentencing structures are WAY too lenient for all drunk driving, and I support one particular form of mandatory minimum sentencing in this setting in the form of mandatory ignition locks (paid for by the offender) as a part of every drunk driving sentence. I have also long thought repeat drunk drivers who kill ought to be at least eligible for the death penalty. Thus, I have long views this high-profile case not so much through the lens of false compassion but through our society's persistent and disconcerting failure to respond to the horror of drunk driving (which kills and maims tens of thousands of Americans each year).
Happy to answer.
2(a). Ten years for the MM. You don't get to be a spoiled, drunken brat, mow down four people, snicker about it, then get "punished" by continuing the party in Puerto Vallarta. And the judge should be removed from the bench.
2(b). The ten years he should have received to start with.
2(c). I don't think any MM should apply to the mother, but she should be criminally punished, you bet. Do you disagree? She's guilty of abetting a probation violation.
3. I'm pretty sure your answer here makes you no longer a death penalty agnostic, but, instead, a pretty firm backer of the idea that, for some cases at least, the jury should have the option of imposing a death sentence.
I extend a hearty welcome to the retentionist camp. We greet you with open arms!
A few quick follow ups, Bill:
1. Would you apply a 10 year MM to any and all first offense drunk drivers who cause even a single death, or is it the multiple deaths here that get you to 10 years? Would you support this as a federal MM to be applied nationwide (like our drug MMs) or do you think this should be a state-by-state policy?
2. I agree mom should be punished severely, but I wonder why you would not support an MM for her? Her crime seems much more willful and harmful and destructive to a sound criminal justice system than many drug offenses that carry MMs, and I also think we need a strong message to deter these kinds of crimes.
3. You should realize that, as a small government consequentialist, I am a skeptical agnostic about all state punishments. I will support any and all punishments only after being convinced the benefits seem likely to outweigh the costs over the long run. With respect to drunk driving, I have lots of reason to think lots of tougher punishments will produce more long term benefits than costs. With respect to blanket alcohol or gambling or drug or gun prohibitions, no so much.
1. You have now changed the original question, but, OK, I'll go ahead anyway.
I would not apply a 10 year MM to ANY first offender who causes a single death. Such a sentence would be too harsh, in my view, for a 14 year-old who, drunk because he's never had booze before, kills someone in a car he loses control of and then feels years of intense remorse about it.
But again, I don't want to stray from what makes this story blog-worthy. What the story illustrates is not the dangers of being too harsh, but the maddening dangers of being too lenient. Those dangers can and should be addressed by sticking judges with binding rules to prevent travesties like the wonderful Mr. Couch.
I'm sure the judges won't like it. But democracies should not design sentencing rules around what judges like.
2. I do not support a MM for the mother because this kind of case, and this degree of flagrant contempt for law, is too unusual to give me a sample size where I could reach a conclusion with the degree of confidence I feel comfortable with. That distinguishes it from, e.g., heroin dealing, where, unfortunately, I have a lot of experience with cases.
Another important lesson starkly laid bare here is that there are two different justice systems, one for the rich and one for everyone else. Does anyone, even for a second, believe that if Ethan Couch was a poor kid from the wrong side of the tracks and killed four people he would be serving anything less than a lengthy prison sentence? In fact, this case is especially egregious because the fact that he was wealthy was, in and of itself, the basis for the ridiculous "affluenza" defense. Part of the public's distrust of the justice system comes from seeing, over and over again, that regular people get punished and rich people tend to walk.
- Victor
I have never seen Victor's observation as that big of a problem.
Would it be great if we could ensure that the rich received the same outcomes as poor defendants? Of course, but it is unrealistic. Some guilty people will always get away with crime because they have better contacts and can afford better lawyers.
The "rich guy got away with it" defense put forth by a poor guilty guy does not make me weep at all.
As far as "public distrust", the courts are the branch of government most trusted by the electorate.
I don't think any single case "lays bare," or even credibly establishes, a very broad proposition like, "there are two different justice systems, one for the rich and one for everyone else." I very much doubt that this kid, rich as he was, would have received anything like the same nothingburger sentence from a judge who wasn't taken in by some exotic defense concoction like "affluenza." Indeed, precious few judges would be taken in by it. One of the purposes of this blog is to keep that number to a minimum.
That said, it is true that well-off people do better in a huge number of life's enterprises than people less well off. Part of this is that the things that make a person well off (e.g., intelligence, trustworthiness, diligence) also produce better outcomes in non-economic ventures. Part of it is that they can afford better help, yes. And part of it is simply an aspect of the universal fact that, for example, good looking people or charming people also do better in the things life serves up, litigation included.
I guess my reaction to this is: So what?
Fretting about the absolutely inevitable inequality that nature (and markets) create by the unequal distribution of their endowments is, I think, a specialty only of people who like to complain.
I am more aware than I care to be that defense lawyers specialize in complaining, but this doesn't make it a constructive thing for the rest of us.
Finally, the fact that this rich kid got an outrageous, undeserved break is not a reason to give ANYONE ELSE such a break. It is, to the contrary, a reason to tighten up the system (as with MM's) to try to see to it that fewer people get them.
"So what?" is such a perfect response, because it relieves one of the need to engage in any conversation on an issue. Murder rate higher in 2015? So what? Someone released from prison committed another crime? So what?
The fact that the rich can often buy a better outcome only matters if you think that's unfair. If you think it's perfectly appropriate, and wealth should shield one from the consequences of one's actions, then that's fine. So what?
And for what it's worth, the "criminal justice system" came in below orgainzed labor, newspapers, public schools, the presidency, and banks in a poll of public confidence in institutions.
http://www.gallup.com/poll/183593/confidence-institutions-below-historical-norms.aspx
"'So what?' is such a perfect response, because it relieves one of the need to engage in any conversation on an issue."
The more typical criticism is that I engage in conversations with readers TOO MUCH. And my engagement with readers is, as you probably know, more than the great majority of legal bloggers.
Since you didn't answer the question, however, I'll ask again: So what? So what, that is, that the legal system has the same feature that every other facet of life has, to wit, that people with the most resources tend to do the best? Asking me to resent that is like asking me to resent the universe.
If you are unconcerned with the 2015 increase in murder (which, unlike inequality, is anything but inevitable), have at it. I long since gave up hope that the defense side would have any concern with the handiwork of its clients. Conscience is so, ya know, behind the times.
"The fact that the rich can often buy a better outcome only matters if you think that's unfair."
Care to define "often?" And whatever your definition may turn out to be, I think we both know that the thing that wins cases is evidence, not money.
"If you think it's perfectly appropriate, and wealth should shield one from the consequences of one's actions, then that's fine."
The irony of your indigestion about -- get this -- a defendant's being shielded from the consequences of his actions is truly wonderful! Isn't the main purpose of criminal defense to shield clients from the consequences of their actions? How many times have I been lectured that I insufficiently honor that mission? But now I get scolded because, it is said, I accept it!
Far out!!!
"And for what it's worth, the 'criminal justice system' came in below orgainzed labor, newspapers, public schools, the presidency, and banks in a poll of public confidence in institutions."
Is that the same criminal justice system in which defense lawyers vastly outnumber prosecutors?
I think it is, but I will stand to be corrected if I'm wrong.
P.S. The same poll you linked shows that the police are trusted by more than twice the number of respondents as those who trust the defense-lawyer-besotted criminal justice system.
Victor stated: ""So what?" is such a perfect response, because it relieves one of the need to engage in any conversation on an issue. Murder rate higher in 2015? So what? Someone released from prison committed another crime? So what?"
Ridiculous. There are certain things we have some control over, such as murder rates and recidivism, and other things we do not (rich can afford better lawyers).
It is like damning the sun on July mornings because it comes up too early and wakes you up. It may make you feel better to rant about it but it will do nothing to make it come up 2 hours later the next day.
You stated: "The fact that the rich can often buy a better outcome only matters if you think that's unfair. If you think it's perfectly appropriate, and wealth should shield one from the consequences of one's actions, then that's fine. So what?""
The first lesson taught to me and should have been taught to you: Life is not fair.
Interesting. It is funny how you euphemize it down to the "system" when we are really talking almost exclusively about "defense lawyers." They are not all equal and the best ones price themselves out of the gang banger selling drugs on the street corner clients. I have no problem with people getting what they are worth. To think otherwise is to propose a soft slavery.
1) Do you condemn these attorneys for getting what they feel they are worth? If so, what is your solution?
2) Do you condemn these attorneys for getting the best deal possible for their rich clients? If so, what is your solution?
You have brought forth no solutions thus far because there are none. The entire subject is brought up only as a pretext to complain and divert.
To TarlsQtr's questions, let me add this one: Do you think defendants should have to wear bags over their heads so they all look the same, in order to nullify the well known fact that attractive defendants do better than ugly ones?
If not, why not?
And why have you passed by my argument that rich people do better, not because they are rich per se, but because the things that made them rich -- intelligence, trustworthiness and diligence (to name three) -- also make them more presentable in court? Do you disagree with that? Why?
Great discussion folks, especially because it highlight tension between a commitment to fairness in the criminal justice system and a willingness generally to allow rich folks to employ more resources in that system.
High profile cases like the OJ prosecution and many capital cases have long reinforced my belief that defendants with the most resources to deploy (whether their own or state provided) will, generally speaking over the long run of cases, get better outcomes regardless of race, gender, looks and other personal factor. And, tarls, we could do something about this by creating a system that seeks to mandate and also perhaps limits the resources devoted to the defense. Notably, we have already done this via constitutional law in some settings through Gideon et al, and many states do this in capital cases by statute by requiring the defense to have 2 experienced lawyers on their side.
The key interesting point here, I think, is that it seems Bill and Tarls do not see this as happening that much and that it is not such a bad thing if it does because wealth may be a marker of other valuable traits. But if they really believed this deeply, it then seems hard to understand why they should be so troubled by an affluenza defense.
As is so often the case, this comes down to a difference of opinion as to what is so harmful about some (perhaps inevitable) unfairness in our criminal justice system and whether any possible response to such unfairness may do more harm than good. And this usefully gets us back to my questions about using MMs at all --- such provision often are designed to try to minimize some perceived unfairness, but in my view they too often do more harm than good to our criminal justice system. (Bill and other former and current prosecutors seem to view MMs as almost always doing more good than harm because MMs always give prosecutors extra authority to shape sentencing outcomes for rich and poor, old and young, male and female, pretty and ugly, as they see fit and without much transparency and second guessing by non-prosecutors.)
The central reason I have problems with the "affluenza" theory has nothing to do with the defendant's economic status or that of his parents.
It's that the theory is tripe. The idea that a 16 year-old of normal intelligence does not know it's morally wrong to get plastered and mow down four people is preposterous. A judge stupid enough (or bought-off enough) to buy it does not belong on the bench, or in any position of power.
I'm sure the defense lawyers are high-fiving it that they sold such a crock. And their colleagues doubtless admire the outcome they secured for their precious client.
I must dissent. I think having a conscience still comes before having what is considered professional success. I admit that this is a minority view.