« Even with reductions in prison populations and end of pot prohibition, crime rates continue historic decline in 2013 | Main | After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage »

February 19, 2014

NY Times debates "Sentencing and the 'Affluenza' Factor"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the import and impact on sentencing of an offender's background.  Here is the section's set up:

This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence.  A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.

The case has angered many who have said that a poor person would have been imprisoned, without the same considerations.  To what extent should life circumstances affect sentencing?

Here are the contributions, with links via the commentary titles:

February 19, 2014 at 09:32 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference NY Times debates "Sentencing and the 'Affluenza' Factor":


Prof. Dershowitz (whom I debated on CNN about the Boston Marathon bombing case, here: http://ctv4.criticalmention.com/playerpage/player?shareid=121116&partnerToken=8a368b493e5d79c4013e6049475d0376&clientId=25914) gets this one exactly right.

On the other hand, former Judge Timothy Lewis takes exactly one sentence to pivot from the actual subject matter to a case he handled years ago, and about which he gives no details except to say that the mandatory minimum term (ten years) was too long.

Yikes. It takes a mental gymnast to get from this episode to an attack on MM's. Although you couldn't tell it from watching Lewis's performance, the case under discussion is one in which an unrepentant and thoroughly drunk 16 year-old killed four people, and was sentenced by a judge exercising what is hilariously called "discretion" to NOT A SINGLE DAY behind bars. Not one.

A "sentence" like that is a mind-bending miscarriage of justice, and, Lewis to the contrary, is Exhibit A as to why mandatory minimums are essential. A law that permits a judge to make a joke of four homicide victims is a law that needs enforceable standards. And enforceable standard means mandatory minimums.

Lewis, incidentally, left the bench in 1999 to make some actual money, for which I don't blame him. Still, he could have chosen better clients. He's currently representing the former president of Penn State -- the guy who oversaw the coverup of years of child rapes by former assistant football coach Jerry Sandusky. Maybe Lewis would do better to represent mere massive swindlers like Bernie Madoff.

Posted by: Bill Otis | Feb 19, 2014 2:19:11 PM


Since you're more in tune with this stuff than I, what do you think are the odds of getting the sentence reversed on appeal? (I understand that your specialty is federal sentencing and that Texas may be/probably is different...but surely some of the same principles apply.)

My instinct is that the appeals court could be swayed by public outrage at this travesty, and they have some potential grounds to flex their muscles on it. Were I on the Texas Criminal Appeals court, I would vote to reverse on the grounds that "affluenza" is not a recognized psychological condition, and thus the trial judge abused her discretion in admitting the evidence (under Daubert or Frye standards...whichever one Texas uses).

But I don't know how viable my approach is, since my criminal practice is very sparse.

Posted by: Res ipsa | Feb 20, 2014 9:40:22 AM

Res ipsa --

Good question. You're right, my knowledge of state appellate procedure, in Texas or anywhere else, is zilch. In addition, this is a juvenile proceeding, so the rules, whatever they may be in the adult setting, could be different here.

In general, SCOTUS settled in a 1981 case that there is no constitutional barrier to the state's appealing a sentence. If Texas procedures allow an appeal, I cannot imagine that one would not be taken. This sentence is so far out of line that even the typical, and highly deferential standard (abuse of discretion) will be met.

No normal person could think that zero jail time is correct here. Indeed, even accepting arguendo the silly defense of "affluenza," the sentence is all wrong: If the kid has grown up thinking that he can get away with anything, letting him (in effect) get away with THIS will only confirm his belief that he's never accountable for what he does. On the defense lawyer's own theory, it's precisely that belief that needs to be destroyed, not confirmed.

Posted by: Bill Otis | Feb 20, 2014 1:35:58 PM

Bill, thanks for reminding us that citizens accused of crime should be tried by media/public outcry/grandstanding politicians, and that a lawyer who represents a client in a criminal matter may fairly be smeared with that client's (alleged and/or proven) underlying conduct. Seeing as I was absent the day they taught that in my professional responsibility course, I am always forgetting.

Turning off my snark-o-meter, seriously, you have a legit substantive disagreement with Lewis and a reasonable argument on your side. Why not let that argument rise or fall on its merits? I would think you lose as many folks as you persuade with this ad hominem stuff.

Posted by: anon | Feb 24, 2014 11:22:00 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB