February 6, 2014
Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four
As reported here via this CNN piece, headlined "Judge orders Texas teen Ethan Couch to rehab for driving drunk, killing 4," the Texas juvenile case which brought the term "affluenza" into the sentencing lexicon was formally completed yesterday. Here are some of the latest details:
A judge on Wednesday ordered that Ethan Couch -- who drove drunk and caused a crash, killing four people and injuring two -- go to a lock-down residential treatment facility. State District Judge Jean Boyd had already decided the Texas teenager would serve no jail time. He was sentenced last year to 10 years' probation.
His story made national headlines after a witness claimed Couch was a victim of "affluenza" -- the product of wealthy, privileged parents who never set limits for the boy. That particular defense, however, played no part in the judge's decision, Couch's lawyer told reporters on Wednesday. Court proceedings were closed to the public.
"She (Boyd) said it (affluenza), and specifically mentioned that that was not a basis for her decision," said attorney Reagan Wynn. "She heard all the evidence and she made what she thought was the appropriate disposition." The judge ordered that Couch's parents pay for the treatment facility, which was not identified. It was also unclear how long Couch might stay there.
As part of his probation, the teen must refrain from using drugs or alcohol. He will also not be allowed to drive. If Couch violates the terms of his probation, he could face up to 10 years behind bars. "I think he can be rehabilitated given intensive therapy and I hope that he gets it," Wynn said about the teen. "The juvenile system is about rehabilitation and if it's going to be about rehabilitation, she (Boyd) absolutely made the right decision."
Eric Boyles, who lost his wife and daughter in the crash, disagrees. He told reporters he has no doubt that money played a role in the case. "Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different," he said Wednesday after the proceedings....
Prosecutors were similarly disappointed with the judge's decision. They had asked for the maximum of 20 years behind bars. "This has been a very frustrating experience for me," said prosecutor Richard Alpert. "I'm used to a system where the victims have a voice and their needs are strongly considered. The way the system down here is currently handled, the way the law is, almost all the focus is on the offender."
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There's a reason -- which this case makes perfectly clear -- that it's the defense bar that keeps telling us we can trust judges with 100% sentencing discretion 100% of the time. God forbid that the legislature mandate that, say, when you kill four people, you spend at least a year behind bars.
Posted by: Bill Otis | Feb 6, 2014 5:00:33 PM
Mandatory minimums for when your actions directly result in the death of someone else --> Probably a good idea
Mandatory minimums for possessing drugs --> Probably not
Posted by: PDB | Feb 6, 2014 5:09:34 PM
"Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different[.]"
There may be good reasons to criticize the sentence in this case, but this argument isn't one of them. We shouldn't use inequality to deny people with money the ability to bring relevant sentencing evidence to court. Instead, we should make sure that *everyone* has the chance to have "the defense there," to have "experts testify," and to have the resources "to pay for treatment" if treatment is warranted.
Bringing relevant evidence to the judge is a good thing. Having the resources to put a defendant in the most appropriate facility is a good thing. It's then the judge's job to decide what punishment is appropriate based on the evidence presented.
If this case is a lesson about the role of money in criminal cases, it's a lesson that we need to be doing more for defendants without money, not artificially handicapping defendants with money.
Posted by: Stephen Hardwick | Feb 6, 2014 5:34:06 PM
I agree with Stephen Hardwick's distributive point: depriving wealthy defendants of a superior defense does not benefit poor defendants and is therefore an illegitimate application of egalitarianism. (I also agree that poor defendants should be provided with adequate resources to mount a genuinely effective defense.)
That said, there may be reasons having nothing to do with egalitarianism to impose spending caps on criminal defense. To the extent that money can buy impressively credentialed but misleading testimony, for example, it may be that spending on criminal defense should be limited not for egalitarian reasons, but simply in order to promote the integrity of the criminal justice system.
Posted by: Miles | Feb 6, 2014 7:05:50 PM
Ah, the Lake Woebegone argument. The fact is that the poor have no money so the only place that the money can come from to mount an effective defense is from those who do have money, i.e. the rich. Until such time as the rich show themselves willing or until democracy forces them to give that money to the poor I utterly fail to see why they should not suffer some "artificial handicap". An artificial handicap is exactly the proper egalitarian answer. The fact is all the children can't be above average.
Posted by: Daniel | Feb 6, 2014 7:27:12 PM
Your argument has one giant hole. Prosecutors are free to ignore Congressional manadatory minimums by charging different crimes. What you seek is not, really, a balance tilting in Congress's favor. Instead, you seek absolute power to be held by the prosecutor, can decide what crime to charge.
Posted by: Babs | Feb 6, 2014 8:24:57 PM
The prosecutor ALREADY has plenary power to decide what to charge, and has had for more than 200 years. Read your Constitution.
After that, could you tell us why, when a judge gives straight probation to someone who kills four people, it is out of line for the legislature to say: Enough. When the defendant criminally kills that many, he is going to jail for at least a year.
Why shouldn't the legislature be able to place at least that minimal and paltry restraint on a judge?
P.S. And, yes, it's true that the prosecutor has the authority to be lenient and charge less than he could. Do you really want to change that?
Posted by: Bill Otis | Feb 6, 2014 9:47:01 PM
"Read your Constitution", Bill? Where are prosecutors mentioned in the Constitution? Most states had no public prosecutors until the 19th century - most crimes were prosecuted via private litigation at the time the Constitution was enacted.
Also, you misrepresent this particular question by trying to pretend the sentencing scheme in the Couch case parallels the federal system. It doesn't. First, Couch was tried as a juvenile, which in Texas is a civil, not a criminal proceeding where the judge is charged with reaching an outcome in the "best interests of the child."
More to the point, as it happens, Texas doesn't "trust judges with 100% sentencing discretion 100% of the time." In Texas, not just judges but also juries often give probation for intoxication manslaughter - Google Josh Brent or Gabrielle Nestande, for example. So the issue isn't really about judicial sentencing if juries have the same discretion and routinely come up with the same result.
Finally, you ask "Why shouldn't the legislature be able" to impose mandatory minimums, and they answer is they ARE able to, they've just chosen not to in part because of obvious flaws in the federal system they don't want to replicate.
Posted by: Gritsforbreakfast | Feb 7, 2014 1:13:06 PM
"The prosecutor ALREADY has plenary power to decide what to charge, and has had for more than 200 years. Read your Constitution."
I don't doubt that. But you seem to think it absurd (as a matter of policy, not Constitutional law) for a coordinate branch to have such sentencing discretion. I'm merely pointing out that your problem is not with a non-legislature wielding such power. Your problem is with someone other than the prosecutor wielding that power. You want to keep all the power for "yourself."
"After that, could you tell us why, when a judge gives straight probation to someone who kills four people, it is out of line for the legislature to say: Enough. When the defendant criminally kills that many, he is going to jail for at least a year."
I note that the legislature's decision is meaningless if the prosecutor chooses to charge a different crime, or none at all. Putting that aside, MMs may be justifiable in some circumstances, but the problem I have is which circumstances those are. Sadly, Congress has made those decisions quite harshly, and without much analysis at all. These things are appended at the last moment to popular legislation, and it would be suicide for any politicial to oppose them.
Finally, it is interesting that so many judges--many of whom are former AUSA's--oppose MMs, or believe them too harsh. It seems that AUSA's favor them only when it increases their institutional bargainaing power. Just a thought.
Posted by: Babs | Feb 7, 2014 2:13:03 PM
"Your problem is with someone other than the prosecutor wielding that power. You want to keep all the power for 'yourself.'"
Nope. I want the LEGISLATURE to retain the power to direct judges that, for some serious crimes, they MUST impose at least a rock bottom sentence.
Do you really think there is no problem to address in the face of a scandalously lenient sentence like the one discussed in this entry?
"I note that the legislature's decision is meaningless if the prosecutor chooses to charge a different crime, or none at all."
Which brings me back to the question you didn't answer: The prosecutor has the authority to be lenient and charge less than he could, or nothing at all. Do you really want to change that?
"Finally, it is interesting that so many judges--many of whom are former AUSA's--oppose MMs, or believe them too harsh. It seems that AUSA's favor them only when it increases their institutional bargainaing power."
That's an interesting pair of sentences. In the second one, you implicitly scold prosecutors for wanting power. In the first, you implicitly recognize that judges want it too -- they don't want that pesky legislature bossing them around, because, according to judges, Judges Know Best.
It's a matter of balance. In the Sixties and Seventies, we had a system that tilted more toward judges. For our trouble, we got a crime wave. The country then decided to tilt the system more toward prosecutors (as it was constitutionally entitled to do). For our trouble, we got a 50% crime reduction.
I'm well aware that judges want more power. I hear it from them all the time. EVERY component of the government wants more power.
That's not the question. The question is what balance of power, as between executive and judicial, and within constitutional limits, advances the public welfare. Fifty years of experience have taught us it's the executive-oriented one we developed in the Eighties, not the judicial-oriented one that served us so poorly before then.
Posted by: Bill Otis | Feb 8, 2014 12:19:57 AM
“Nope. I want the LEGISLATURE to retain the power to direct judges that, for some serious crimes, they MUST impose at least a rock bottom sentence.”
So you want judges, but not prosecutors, constrained by mandatory minimums. Which is what I suspected.
Also, you qualify that it should be for “some serious crimes.” Part of the opposition to MMs is that they are not simply reserved for some serious crimes. They are not reserved for terrorism, or murder, or treason. Instead, they are reserved for those who look at pictures of others committing crimes against children, as well as a broad swathe of drug offenders, some violent, others not so. An alien visiting this planet, told that MMs—given their harsh and indiscriminate effect—were reserved only for the most serious offenses, wouldn’t recognize that as a quixotic fiction.
“Do you really think there is no problem to address in the face of a scandalously lenient sentence like the one discussed in this entry?”
This sentence is a rarity, which is why it has engendered an uproar. Sadly, Congress thinks according to the logic in your statement. Because a “rogue” judge has sentenced someone in a way the public finds inappropriate, all judges should lack discretion. I can imagine a legislator saying the same about guns—because some abuse them, none should have them—but I doubt you would agree.
Moreover, the fix already exists. Appellate courts can review the decisions that sentencing judges make. Who reviews the prosecutor? Indeed, the prosecutor is the only branch of government in this equation whose decisions are shrouded in secrecy.
“Which brings me back to the question you didn't answer: The prosecutor has the authority to be lenient and charge less than he could, or nothing at all. Do you really want to change that?”
No, I don’t want to change that. I want the prosecutor to have his discretion. But I also want the judge to. There is a good institutional reason for that. Judges are chosen, and institutionally designed, to be free of the kind of bias that comes from having to account to the swinging vagaries of public opinion, or the kind of bias that comes from being an advocate for the government. Judges are supposed to be neutrals. I like the idea of neutrals making sentencing decisions, constrained by appellate judges.
“It's a matter of balance. In the Sixties and Seventies, we had a system that tilted more toward judges. For our trouble, we got a crime wave. The country then decided to tilt the system more toward prosecutors (as it was constitutionally entitled to do). For our trouble, we got a 50% crime reduction.”
I will assume, for a moment, that the crime reduction was a result of lengthier terms of incarceration. That does not mean that I favor it across the board, or that anyone should. For instance, if you put every convict in jail for life, you would probably achieve some crime reduction, but at what cost? MMs are indiscriminate. I think people are realizing that so many convicted under them are not dangerous. I’d prefer smarter sentencing, rather than simply locking everyone up for long periods of time. Convicts should not be imprisoned for extremely lengthy periods because some small percentage among them will commit greater crimes. I understand you disagree, but so be it.
Posted by: Babs | Feb 9, 2014 7:27:58 PM
Me: "I want the LEGISLATURE to retain the power to direct judges that, for some serious crimes, they MUST impose at least a rock bottom sentence.”
You: "So you want judges, but not prosecutors, constrained by mandatory minimums. Which is what I suspected."
You then directly contradict yourself by saying that you DON'T want the prosecutor to be required to charge the most serious offense the facts warrant, and that you "want the prosecutor to have his discretion."
But you then immediately say, "I also want the judge to."
He does. Not that many crimes have MM's. For the relative few that do, the defendant (at least federal defendants) have four escape mechanisms, one of which is controlled entirely by the judge and which can be applied whether the prosecutor likes it or not. This mechanism, the Safety Valve, has been used tens of thousands of times.
Bottom line: Judges have plenty of discretion, just not all of it.
Other bottom line: You and I agree that both judges and prosecutors should have considerable discretion. Where we disagree is what role the legislature should have. You would give it none. I would allow it to require a rock-bottom minimum for crimes it views as very serious.
Now let me ask you two questions.
First, who will be the most direct and immediate beneficiaries of the SSA? I would say drug pushers. What would you say?
Second, did the great majority of our people fare better in the era of judges-do-your-own-thing (the Sixties and Seventies) or the era of MM's (the Nineties and Two Thousands)?
Yes, I know criminals have done worse. That's not my question. My question is whether the vast majority -- the peaceable, law-abiding majority -- did better during the former era or the latter.
Hint: Another way of asking this question is to ask whether ordinary people do better when there's a lot more crime or a lot less crime.
Posted by: Bill Otis | Feb 9, 2014 11:14:33 PM