Affluenza: If Only There Was An Epidemic

Though Judge Jean Boyd never uttered the word during sentence, it’s come to characterize the 10 year sentence of probation, with the condition of rehabilitation at a center in Newport Beach, California at a cost of $450,000 a year, footed by his parents.  Ethan Couch caught it, affluenza.

The 16-year-old killed four people after stealing a couple of cases of beer from Wal-Mart and plowing into them in his pickup truck.  Most people would have time to reflect on this in the quiet of a cell, but not Couch.  That’s because he suffered from affluenza, the causes of which range from parental neglect to enduring a life where actions had no consequences. Money was the distinguishing feature of the disease.

And so the word has been widely ridiculed, proof (as if anyone needed it) that the system is different for the rich.  This is usually where stories about the poor being sentenced to outrageously long prison terms for crimes of less, even negligible, culpability are put in to fuel the outrage.  But you already know them, tens of thousand of them, and this isn’t the point of this post anyway.

Couch’s lawyer, Scott Brown, explained the sentence:

Scott Brown, the boy’s lead defense attorney, said he could have been freed after two years if he had drawn the 20-year sentence.

But instead, the judge “fashioned a sentence that could have him under the thumb of the justice system for the next 10 years,” he told the Star-Telegram.

The families of the victims weren’t comforted by the explanation.

Eric Boyles, who lost his wife and daughter, said the family’s wealth helped the teen avoid incarceration.

“Money always seems to keep you out of trouble,” Boyles said. “Ultimately today, I felt that money did prevail. If you had been any other youth, I feel like the circumstances would have been different.”

In the scheme of rational sentencing philosophy, this sentence is clearly long on rehabilitation and short on the other factors, deterrence and retribution. What differentiates this case isn’t that money worked its magic, but that money was the excuse.  Poor little rich boy.

After some of the angst recedes, there are a few elements of this “outrage” that merit thought, aside from one judge in Texas giving one kid with rich parents a sentence that comes off as disgracefully lenient.

Wealth has always mattered, though it isn’t often as flagrantly used as here.  On the intake side, rich white kids smoke weed in the privacy of their parents’ estate. Poor black kids smoke weed on the street corner. Rich white kids are Ivy League legacies. Poor black kids are PS 128 drop outs. Rich white kids have parents who will be there when they get in trouble, even if that’s the only time they meet them. Poor black kids may not be sure of their father’s name. These are the lifestyle differences of money, and they matter.

When rich white kids get in trouble, their parents have the wherewithal to get the best legal representation. But it’s not just the lawyer. Sure, a great lawyer makes a difference, but it’s also all the bells and whistles that money can buy, from psychological experts to investigators to forensics to a small army of services available for a price. Poor black kids get a legal aid lawyer, who would love to do everything the lawyer for the rich white kid can do, if only he didn’t carry 150 other cases and have no funds for a bell, no less a whistle.

And lest anyone think this correlates to race, per se, it’s just money. If the black kid has rich parents, then he too will have all the accoutrements of wealth. And if the white kid is poor, then he will get the trash treatment.  Money isn’t black or white, but green.

It’s not a crime in America to be wealthy, but it is the source of much anger and jealousy.  When the wealthy go down hard (remember Dennis Kozlowski’s infamous $6000 shower curtain?), we applaud the system for not giving the wealthy a free ride. Money isn’t a cure-all, and sometimes there is no amount of it that will save a defendant.  Despite the fact that it’s a pretty sick impulse, we relish the schadenfreude.

But what raises our ire about the sentence imposed on Ethan Couch is that we wouldn’t be cut the same break.  It’s unfair. It’s so terribly unfair. It’s unfair because it wouldn’t happen for us.

Nobody likes to have their shortcomings rubbed in their face, and for most of us, our shortcoming is that we don’t have Couch-level money. And so, were we in Ethan Couch’s position, we couldn’t pay an expert to opine about how we suffered from affluenza and desperately need a rehab facility with an off-shore breeze instead of prison.

And despite our best, most passionate, arguments, few judges would ignore retribution in favor of rehabilitation to the extent Judge Boyd did here.  Kill a few people and you go to prison. Heck, steal a loaf of bread to feed your children and go to prison.  That’s how it works for the rest of us.

The sentence imposed on Ethan Couch falls on the extreme end of leniency.  It’s troubling in its absence of deterrence and retribution, mostly because we need to believe that these considerations matter or it puts the lie to sentencing for everyone. Most people have a visceral reaction to crime, and blindly embrace retribution in some biblical sense. It’s how we feel.

Yet, rather than hate Couch for the leniency he was shown, or money for making it possible, perhaps the better lesson is that we should all suffer to some degree from affluenza, and the flaw here is that it isn’t an epidemic, but a very rare disease.  And the other takeaway might be that our gut reaction, that lengthy prison sentences must invariably be the solution for harm, needs to be tempered.

No, poor black kids can’t offer to spend the next couple of years in long-term rehabilitation with an oceanfront view and four star cuisine. Maybe the cure isn’t denying that option to Couch, but finding an option for poor black kids other than prison forever.  The problem isn’t that kids like Couch suffer from affluenza, but that affluenza isn’t contagious,

17 comments on “Affluenza: If Only There Was An Epidemic

  1. Ken Bellone

    Being “under the thumb of the system” for 10 years may be no laughing matter vs. two. But I would take that over daily forced sodomy, shakedowns and general misery for two. Heck, we are all under their thumb in some fashion and I won’t even get into the 5 figures I still owe the IRS. I’m relieved that affluenza isn’t as contagious as the 1918 Spanish Influenza epidemic.

    Still, what remains is little justice for those who lost family forever an more proof that those with the right skin tone, and some money get away with far too much, although not nearly to that extent. I feel guilty, a tiny bit, that I usually get off without a ticket because I have short hair, am fairly well-spoken and a veteran. Military ID next to your DL in plain view helps.

    1. SHG Post author

      I was talking to a potential client yesterday, who told me he wanted “justice.” My response was that I wasn’t interested in taking his cause if that was his goal. If, on the other hand, he wanted something within the realm of what the system could produce, say money damages or injunctive relief, then I would consider it.

      There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”

      I don’t do justice. I do law.

      1. Jim Majkowski

        One version, ascribed to Hand himself (Do Justice!, Michael Herz, Virginia L Rev, Vol 82, No. 1 (1996)), is that immediately upon being summoned to return to the carriage, Hand said, “Oh, I know, I know,” and Holmes’s statement was that his job was “to play the game according to the rules.” “To apply the law” has been ascribed to Robert W. Bork and quoted by such as Thomas Sowell. I like the “game” version, as, IMHO, it better illustrates both Holmes’s attitude and that Hand was already well aware of the distinction.

        Sorry for digressing.

  2. Jake DiMare

    Stepping away from my childish obsession with ‘Justice’ for a moment…

    I completely agree with the conclusion that the system would be better for everyone (except highly paid defense attorneys) if it were more focused on rehabilitation than retribution. However, as I’ve learned from you on other occasions, that’s not the system we have.

    I’ve also learned the ostensible value of the system we have is a societal effect beyond the individual case. That of deterrence. It seems obvious to me that instances like the Couch case severely subvert and debase any deterrent value in punishment.

    All that said, it should make any rich person think real hard about where they live. In poor neighborhoods there are consequences for killing people.

    1. SHG Post author

      Rich people would discuss this at the club, but they don’t have to. That’s part of the joy of being rich.

      More seriously, the wealthy have an entirely different perspective, as should be completely understandable. They’re vested in the system, as the system has done well by them, and fail to perceive their trespasses as anything more than transitory mistakes, for which they are very sorry when caught. And they are sincere about it.

      1. Jake DiMare

        Well, here’s to the hope there’s a system in Texas remunerative to the victims’ families that will be making the Couch family much, much, more sorrowful in this case in due time.

        1. SHG Post author

          I would imagine that the families of those who died at Couch’s hand will receive ample compensation, even if they don’t get justice. That’s the bright side of a wealthy defendant, good insurance, an umbrella policy and deep pockets just in case.

  3. spencer neal

    I read an article the other day about a former University of Virginia lacrosse player who was convicted of murdering his girlfriend. His name was Something the Fifth so I guess his family was a Virginian blueblood. His family was rich enough to hire Paul Clement to argue the appeal!! Whether the family’s wealth which allows it to hire Clement makes a difference in the son’s case remains to be seen.

    1. SHG Post author

      It’s good to have the former Solicitor General of the United States arguing your appeal. It’s good to be able to afford to. Ironically, Clements is a far bigger macher than the judges hearing the case.

  4. jahigginbotham

    The non-communicability of affluenza has a simple obvious answer. We should just pass a law requiring contagion.

  5. John Barleycorn

    Judge Jean in not mean that being said she is not Mean Jean.

    She is also a sitting Board Member of Gill Children’s Services.

    Their Mission:

    Gill Children’s Services is a funding source of last resort that provides a safety net for Tarrant County Children whose medical, dental, physical, social, psychological and educational needs have not been met by other community resources.

    I wonder where, if at all, within the spectrum of social and psychological needs the Gill Board would place legal services as I am pretty sure even in Texas the “children’s” medical, dental, physical, and educational needs are at least given a paragraph or two in the Juvenile Detention Center Lock Up policy manual.

    I would like to think Not Mean Jean is going to stay on this board for awhile and tirelessly argue for an expansion of the mission statement to include “legal services” for “criminally” charged youth who are not carrying the affluenza gene.

    That brings my thoughts to Ethan whose testicles have already descended and have narrowly escaped resending. Ethan might weave his fortunate luck via Not Mean Jean into a tangible bucket of societal good deeds once he inherits his affluenza literally.

    Perhaps this manslaughter of his metastasizes into an awareness and productive guilt that few fortunately have to experience.

    Lets just hope he doesn’t grow up to find himself in a similar or worse situation arguing his actions were due to society giving him a “guilt trip” which some might argue this current sentence opens the door for.

    1. SHG Post author

      I suspect affluenza only serves as a mitigating factor once. He’ll need to come up with a different argument next time.

  6. Nagita Karunaratne

    Raising the bar for the masses rather than lowering it for the rich would be nice but everyone knows that its unrealistic. But the problem is that I don’t think this will ‘cure’ him.

    Every day when he wakes up in this luxury resort/treatment facility he is going to be reminded that his parents paid for this. This is $37k per month and I doubt they feed you bread and water and I fail to see how this is going to separate him from the ‘affluence’ of his parents.

    It was enough to give him probation rather than jail but then to add on an ultra-expensive facility where he is unlikely to meet anyone from the real-world is ridiculous. If it was probation then it should have been a bed at a publicly-funded mental institution.

    1. SHG Post author

      …but everyone knows that its unrealistic.

      Not everyone. You, perhaps, but not everyone. To give up hope of improving the system is cynical, and thankfully, not everyone is as cynical as that.

      …a publicly-funded mental institution.

      Huh? This has nothing to do with a mental institutions. This has to do with rehab facilities, and they’re terribly short on bed space. To give Couch a bed is to deny it to someone else. So you would leave a poor kid bedless and helpless as punishment to Couch? That’s nuts. If you want a harsher sentence on Couch, that’s fine. Many agree with you, but not at the expense of some poor kid who also needs rehab but will be denied if Couch took his bed.

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