Ethics Observations On The “Affluenza” Sentence (And None Of Them Involve Criticizing The Judge)

Judge Boyd, being judged. (The earlier photo posted was NOT Judge Boyd. I apologize to the judge, readers, and whoever's photo that was.)

Judge Boyd, being judged. (The earlier photo posted was NOT Judge Boyd. I apologize to the judge, readers, and whoever’s photo that was, for the error)

The newsmedia and blogosphere are going bonkers over the sentence given to Ethan Couch, the 16-year-old Texan who pleaded guilty last week to four counts of intoxication manslaughter and two counts of intoxication assault causing serious bodily injury. He had a blood-alcohol level three times the legal limit (Couch had stolen beer from a Walmart), plus traces of Valium in his system, when he lost control of  the Ford F-350 pick-up he was driving (over the speed limit) and slammed into four people trying to fix a disabled car on the shoulder. They were killed; two of his seven passengers were critically injured. Prosecutors proposed 20 years in jail as the proper punishment for Couch, but his attorneys tried a novel defense: they had experts testify that their client suffered from “affluenza,” a malady caused by his rich, amoral, neglectful parents, who taught him (the theory goes) that there are no consequences for anything, if one has enough money.

Rejecting the prosecution’s argument, State District Judge Jean Boyd, presiding over the Fort Worth Juvenile Court, shocked everyone by sentencing Couch to only 10 years of probation—no prison time at all. The gist of the media outrage: once again, the life philosophy of Couch’s sociopathic parents is validated. The rich get away with everything: a poor, minority defendant who engaged in the same conduct would have been imprisoned. This is the injustice of the criminal law system in America.

Maybe. But let’s not get ahead of ourselves.

I think the judge, despite what we are hearing from the media, may have done her job well.

1. I have no idea whether Judge Boyd’s sentence was appropriate or not, and neither do you, nor does any commentator, pundit or radio host that didn’t sit through the trial. If judges made rulings on cases by simply reading summaries of the facts, arguments and testimony—that is, exactly what all of the critics are basing their howls on, if even that—-everyone would agree that the practice was unwise, unfair, and likely to produce bad  jurisprudence. The game of second-guessing judges and juries, primed by instant call-in or online polls responded to by casual voters leads to a lynch mob mentality, where people who learn about case results second and third hand inflame everyone they know, and soon a cultural consensus is in place regardless of relevant facts. Should we question verdicts and sentences that seem wrong to us? Absolutely. There are bad verdicts and unjust sentences. I highlighted one recently that I would be stunned if any additional information surfaced that could justify it. Still, even in that case, it could happen.  Judge Boyd has more experience and knowledge about this case in her court than any after-the fact kibitzers. She deserves the benefit of the doubt, when there is doubt, and there usually is.

2. Once again, we have an example of a defense being raised in court that many observers find repugnant. At a gut level, the “afflueza” argument seems ridiculous to me, even if, as I strongly doubt, there is such a clinical malady as “affluenza.” A teen misbehaves because he has never had to face the consequences of his own actions, so the judge should once again not hold him responsible for his own actions? Talk about an argument that cuts both ways. Still, if the lawyer believes that such defense is his client’s only chance of avoiding the hoosegow—and what other defense is there for an incident like this?—then he not only should try it, he has an obligation to try it.

3. The media reporting on this case has ranged from misleading to incompetent. Here, for example, is Time:

“The defense saved him from a 20-year sentence; State District Judge Jean Boyd bought it at his sentencing on Tuesday and gave Couch probation instead.”

Here’s an editorial writer for the Dallas News:

“Boyd apparently swallowed whole the defense argument that Couch was just a poor, little rich boy effectively abused by parents who set no boundaries and gave him everything except actual parenting.”

And here is the reliably truth-challenged Daily Kos:

“Texas State District Judge Jean Boyd bought the inane “I’m too rich for consequences” defense and actually sided with the Defense and gave him probation…”

This is the theme in the coverage: most of the cable news shows headlined the story that way: a judge was lenient on a drunk driving killer because he was too rich and privileged. There is no evidence I can find that the “affluenza” defense influenced the judge: she apparently didn’t refer to it in her sentencing. I especially like the Daily Kos author’s “actually sided with the defense” claim; well, yes, any time the judge doesn’t accept the maximum sentence recommended by the prosecution you can say she “sided with the defense.” Nevertheless, there is nothing on the record to indicate that Boyd “bought” the defense’s theory.

The news media is flagrantly endorsing the false rationale of post hoc ergo propter hoc—”after this, therefore because of this.” For all anyone knows, the judge would have handed down the same sentence without that defense and its supporting testimony.

4.  Boyd’s actual sentence was carefully thought out, and she did not suggest that he was not responsible for his actions or their results.  She ordered the 16-year-old to receive therapy at a long-term, in-patient facility. His parents were ordered to pay the $450,000-a-year cost for his treatment, which could last several years. Prior to treatment, Couch will stay in Tarrant County juvenile detention until the juvenile probation department prepares a report about possible treatment programs. If the teen violates the terms of his probation at any point, he could be sentenced to prison for 10 years.

In making her order, Judge Boyd told the victims’ families that no sentence would lessen their pain. Directing her remarks to Couch, she made it clear that he, not his parents, is responsible for his actions.That doesn’t sound to me like an endorsement of “affluenza.” Boyd explained that she is familiar with the programs available in the Texas juvenile justice system , and that teens often fail to get the kind of intensive therapy in a state-run program that they would receive at the California facility where she was sending him. This is a sentence crafted to reform and treat a child whose life might still be salvaged.

5. Not that the national media was paying attention, since it wanted to sensationalize the story, but Scott Brown, one of Couch’s attorneys, pointed out that  his client could have been freed in only two years if Judge Boyd had sentenced him to 20 years. “She fashioned a sentence that could have him under the thumb of the justice system for the next 10 years,” Brown said. Judges understand the realities of the justice system: whatever the perception, it can be argued that she gave Couch a tougher sentence than what was requested by the prosecution, as well as one that sought to achieve positive results beyond simple retribution.

6. Doesn’t a judge have an obligation to send a powerful message to other teens, by harshly sentencing Couch to long, hard time? That’s a legitimate view of judicial ethics, but not the only one. Boyd, like many judges, may believe that her obligation is to regard each case as unique, and to sentence defendants according to what she believes is in the best interest of society regarding that particular case, not the generic category of cases. Her judicial duty is to balance a multitude of interests. The desire of the families of the victims to see Couch suffer is not one of the interests that deserve to be taken into consideration, not are the sensibilities of armchair judges in the media. There will be consequences of Ethan’s actions that will restrict and govern his life for a long time. In 2o years, Texas may have created a productive and responsible member of society, rather than a 36 year-old ex-con. If so, justice will have prevailed.

7. Boyd is an elected judge, and one who is not running for re-election. Would she have made the same decision about how to handle Couch’s case if she had to face the voters once more? Whether her sentence was right or wrong, I hope she possesses sufficient integrity and courage that the answer to that question is yes.

[She's late, but esteemed blogger/law professor Ann Althouse comes to many of the same conclusions in her post, here.]

_______________________
Pointer: NPR
Graphic: Ann Althouse

564 Comments

Filed under Character, Family, Journalism & Media, Law & Law Enforcement

564 responses to “Ethics Observations On The “Affluenza” Sentence (And None Of Them Involve Criticizing The Judge)

  1. You undercut your legitimacy by saying, and I “QUOTE” “I think the judge, despite what we are hearing from the media, may have done her job well.” What are you basing what you “think” the judge “may” have done well on?? Oh, Right, the same information that EVERYONE including the media who it just so happens, thinks the judge may NOT have done her job well.

    Moreover, what “evidence” do you have detailing/showing the considerations made by the Judge in framing her decision regarding the affluenza defense?? Let me guess, the same information, not “evidence” that everyone else who was not present for that hearing has?? loL!

    Truth is, you have no more access to insight than anyone else…So again, you should dial down the sciolistic surmising, & preface what you post, as tenuous as it is, as an opinion based on 2nd & 3rd hand information. :-D

    • Oh go fuck off and die, you illiterate, ignorant pile of shit

    • Lol and smiley faces designed for mockery get you banned here, pal. Last warning.

      Since I did not, unlike the press reports, attribute the judge’s sentence to a defense argument that she gave no indication of accepting, and because I did not, unlike many commenters here, base my opinion on the false implications communicated thusly, and because I do not harbor a reflex desire to punish the wealthy for daring to be alive, and because, as a lawyer and a trained prosecutor with experience in juvenile justice, I appreciate the special considerations and compassion due to juvenile defendants—AND because, as someone with extensive experience with alcohol abusers, I understand that their conduct, at a certain point, is far from rational and even volitional, my opinion is 1) not based on bias, 2) commences with the presumption of fairness on the part of the judge, 3) based on a law degree, criminal law training and my profession and experience as an ethicist, and therefore fair, objective, informed, and rational.

      That doesn’t make it necessarily correct. It does make it more trustworthy than any journalist who writes “Judge gives rich killer country club rehab instead of jail time after buying crazy defense theory.”

      • Sio

        “…and because I do not harbor a reflex desire to punish the wealthy for daring to be alive…”

        Didn’t realize that’s what he was being charged with. Nice strawman.

        • Nice pulling out of context. It’s not a straw man at all. The same argument, in essence, as “affluenza” has been used on behalf of at risk and underclass teens for 50 years, with great success, and few have made this big a fuss when one such defendant caught a sympathetic and lenient judge. Bias and suspicion of the wealthy isn’t a straw man, its a factor in this and a lot of other controversies. That was one element in a list of reasons why I don’t condemn the judge even if I don’t like her sentence much. Do you want to deny that inherent bias against “rich kids” isn’t a factor here

          Weak debut, Sio.

          • Sio

            What’s weak is your application of double standards. You’re quick to assert an inherent bias against rich kids, but have dismissed out of hand other commenters as “race-obsessed”.

            So wealth matters, but race doesn’t? Nice try.

            • You’re comparing apples and walnuts. When people specifically find fault with someone because they are rich and say so, then they are exercising a bias. When people read race into situations where race is irrelevant, they are manufacturing a bias. I wasn’t manufacturing a bias. There’s no double standard.

  2. daweeni2

    I’d like to have some reporting on how much the rich kid’s daddy donated to Judge Jean’s election campaign.

    • If he did, that would be a conflict of interest and the judge shouldn’t have heard the case. I will assume, therefore, that there was no such contribution, as should you.

      • daweeni2

        Sorry, but I don’t see any reason why I should assume anything, just because a judge, ethically, should have excused herself in a case like this. We have seen cases where even Supreme court Justices don’t excuse themselves from cases where there is plenty of suspicion of conflict of interest (http://www.jurist.org/forum/ross1.php). It is an elected position. The judge is a Republican, and given realities in Texas is quite possibly the case with the wealthy father, as well. I don’t think that it is at all unreasonable to wonder whether a conflict of interest existed as a result of something that very easily could be the case. Aren’t journalists supposed to investigate this sort of thing, or are they also obliged to assume everyone is operating ethically, and just move on?

        • You are misinformed. Supreme Court justices are given leave to decide if their conflict is real or something that they can resist influencing their decision—they do nothing wrong nor unethical when they fairly conclude that they may go forward. The party affiliation of an elected judge is not a valid reason to presume bias; neither is her race. You can wonder what you want—you can’t conclude there is a conflict or bias without evidence, and there is none.

          • daweeni2

            The link I sent indicates plenty of reason for Scalia to have recused himself. That he didn’t says more about him than any rights justices have. Whatever the case may be, what I said from the start was that I would like to see some reporting on whether there were any contributions, since wondering, not concluding, is exactly what I am doing. You are the one who is assuming that there is no evidence, when, in fact, “there is none” as yet.

            • Oh for fucks sake…

              Would you like the list of cases that Kagan should have recused herself from?

              Or – and this the the preferred option – you could share your cockholster and die in the fire of your choosing.

              I’m fucking sick of your hyper-partisan bullshit.

              Don’t you have a park to go camp in while shitting on cop cars, raping women, and bitching about people who managed to be (unlike yourself) successful?

            • Scalia wrote an excellent and thoughtful memorandum addressing these concerns. I agree that he should have recused himself, not because he was necessarily biased, but because it looked bad. But his decision was not clearly wrong, and his reasoning for it was sound.

            • There is not “as yet”? That’s true whenever there is no evidence. There is no evidence that President Obama is an Iranian spy, either, and I would still be unfair and irresponsible to raise the question on the theory that evidence supporting my contention might surface eventually.

        • daweeni2

          Oh, and even I, not a journalist at all, have been able, since last post, to ascertain that Couch is indeed a Republican, and he has indeed made contributions to the Republican Party, although as yet, I haven’t gotten to a direct connection with Boyd’s campaigns themselves.

        • Here ya go gumshoe: Your first resource . Burden of proof is on you.

          My first search revealed the only campaign donations by a “Couch” from Keller was to the Texas Realtors Association PAC in three payments over a 4 year period from 200-2004 of under $140.

          Hope you can dig up more.

          Otherwise shut your claptrap. So far your accusations are based on wild assumptions and gross stereotypes.

    • Liberal Dan

      Seems to me the state of Texas has a repository of searchable campaign contributions that one could check if one was interested to see if the judge had received campaign contributions from the family.

      Personally, I had a similar concern. But instead of posting some vague “what if” type of post that only serves to attempt impugn someone’s character by the implication that they must be corrupt because they made a ruling that I do not agree with, I went to the website and did that search myself. I found no evidence of such contributions.

  3. Marlboro.Stan

    Will the author even admit that if this was a black child from a wealthy family the chances are very very good that child would get jail time? Will the author even admit that or will he just hide his head in the sand and pretend I never asked this question?

    • The author doesn’t appreciate the snide attitude. The implication of racism on the part of the judge is slander and pure biased speculation. Obviously nobody predicted that she would handle this case as she did; there is no basis to conclude how she would handle a hypothetical case. Absent evidence that has a Confederate flag hanging in her bedroom and a secret membership in the Klan, I see absolutely no justification to identify race as the determining factor here—none. Because there isn’t. The author thinks the commenter is a race-obsessed ding-a-ling.

    • Beth

      Wealth — and the defense team a defendant retains with that wealth — plays a much greater role than race in any trial. O.J. being an obvious example — his defense team ruled that courtroom despite the evidence against. A poor white O.J. would have been convicted, no question.

      Or, look at the L&L hearing that Jack recently blogged about. The two defendants there were Jewish at a time when being Jewish really was considered by some to be more of a separate race as opposed to religion. But because daddy was able to afford Clarence Darrow, they didn’t die.

      Finally, I can just imagine what a great defense attorney would have done with this fact pattern if his client had been a rich, black teenager. He probably would not have gone for “affluenza,” but sympathy arguments abound.

      • It is what drove me out of criminal law. The prosecutors have the edge against poor defendants, who get sub-par (often) representation. Then as soon as the prosecutors really get good, they accept big bucks to represent white collar criminals and deep pocket defendants against themselves, minus 15 years of experience. Darrow had over 100 capital cases, and not one of his clients was ever sentenced to death. It is not a fair system when so much depends on how good the advocates are.

        • Steve

          The prosecutors have the edge against poor defendants, who get sub-par (often) representation.

          Bigger pockets, more resources?

          “It is not a fair system when so much depends on how good the advocates are.”

          Jack would you say some of that is perspective? Based on the system being designed to provide the accused the advantage and the state the burden much of it is perception and how much is it the system working? Based on defendant resources and the system giving the advantage to the accused it would make sense that with a double advantage the more affluent would walk more often. The state has more resources but the accused has the systems designed bias in is his favor so isn’t that more of a zero sum? The more affluent have the ability to counteract the resources of the state? In other words they can take more of an advantage of the system bias, thus walking away more often.

          I am not downplaying the skill of the advocates, I know it matters, but I wanted to see if some of feeling of unfairness isn’t misplaced.

          • The advocacy system assumes equally dedicated, experienced and skillful advocates on both sides. In criminal law, it doesn’t work like that often enough. Young and talented but inexperienced or older and experienced prosecutors are too often pitted against less talented and inexperienced public defenders or experienced mediocrities with poor or minor offenders as clients, and then have to face off against the top of the line when major crimes and rich offenders are being tried. Switch lawyers, and you switch outcomes. Not always, but too often.

            Most defendants are guilty, usually as hell. The state has the burden of proof, and prosecutors are bound not to prosecute the innocent, while the guilty must still be defended. The system doesn’t really favor the state.

            • Jack,

              I thought Steve’s point was that the system was designed to favor the accused and slanted much more AGAINST the state. That due to this, for the vast majority of cases everyone gets a fair shot and equal treatment under the law to defend themselves. That wealthy people may afford a better defense counsel and increase the bias against the State doesn’t mean that the less wealthy do not enjoy a system intentionally biased in their favor.

              • I wouldn’t be surprised—I’m sick as a dog, and probably misread it. I’ll go back and re-read after my Dayquill kicks in.

              • Steve

                Yes, more or less my point. I was a bitunder the weather myself so I might not have been as clear as I thought

                • texagg04

                  And I think it should be clarified that:

                  The system’s fairness is not measured by whether or not the *actually* guilty have an equal likelihood of being found not guilty. The system’s fairness is measured by whether or not the *actually* innocent are being protected from being wrongfully found guilty.

        • Luke G

          Completely not related to this specific case, I would love to see you expand this reply further. If you think the system is unfair, having been in it, for the reasons you state on this thread, how should it be fixed? Is there some course correction that can or should be put in place, or is this one of those times when the best practical option still just has problems? In the light of all the posts you’ve done about court cases lately it would be fascinating to have that area of thought expanded upon. I know I’d like it anyway.

  4. Marlboro.Stan

    I have a question. Are there no Bed and Breakfast Rehab Centers in Texas? Why did she whisk him away to California? Even that smells a little fishy to me. How is she to know if his parents are secretly seeing him in California?

    Half a million dollars a year is MOTIVE to make sure Ethan successfully completes treatment, right? What if he starts crying like a little girl and wants to see his parents? I can guarantee you they would let him see his parents because of that half a million bucks.

  5. Marlboro.Stan

    PS…that photo of Boyd is not Boyd.

  6. Beth

    I’ve decided what really has me ticked about most of these comments. Many people are ignorant about our judicial system, but that doesn’t stop them from arguing their points anyway. I don’t understand that at all. If someone blogged about a medical surgery purportedly gone wrong, I perhaps would read it with interest, but I would not opine whether or not malpractice occurred, because I am not a trained medical professional and would have no clue. Same would hold true if someone discussed an engineering schematic for a bridge design or whether or not a new thruster is needed for a rocket to reach the International Space Station. If you don’t know, shut up.

    Just because you may have sat on a jury in the past or might in the future does not mean that you know anything about the law, and it certainly does not mean that you know anything about the juvenile justice system. It is completely different.

    That is not to say that this snot-nosed brat isn’t getting off easy. I have my doubts that this spa/rehab facility is going to reform him. But, assuming that there is even the chance of reform, I have no problem with this kid going there and letting daddy pay the staggering bills. That’s better then having us foot the bill to send him to a state facility that most likely has an even lesser chance of success.

    • I feel the same way, Beth, completely. It’s TV: everybody thinks they know how to be a judge and a lawyer, and most people can’t comprehend legal ethics and juvenile justice at all. I used to think I’d like being a judge. Uh-uh.

      • Beth

        Are you referring to the influence of legal dramas or news coverage? Damn you Perry Mason! I think it’s more than though because Chicago Hope hasn’t turned anyone into a medical expert. I think it’s simpler than that. People say: “Lawyers write, read, and talk for a living. Wow – I can do those things too! That makes me qualified to discuss case law and opine on the efficacy of the judicial system.”

  7. Davey Jones

    The term, ‘Affluenza’, used in Couch’s defence aimed at, shifting the blame from the kid to his parents. Therefore he must not be blamed, for he isn’t at fault rather his parents are. But since they aren’t on trial, the judge should let the kid go, for clearly, he can’t be blamed, that is, if one buys that bullshit.

    I’m sure most would agree with that reasoning.

    Now from what I’ve read, the judge clearly stated that the defendant was responsible, NOT his parents(Correct me if I’m wrong). Well, there you go, the whole Affluenza defence gone..Pooff!..History. Flushed down the shithole, along with the remainder of, what lil gray matter anybody, still harping on that point,had.

    Now lets talk about the, slap on the wrist, sentence of rehab and a decade-long probation. Far from being criticized for it, Boyd should be hailed as a reformer. With a quarter of US population behind bars; an Incarceration rate higher than that of Russia n even China, the judge chose to take the, arguably controversial, path of trying to make that kid learn from his mistakes and maybe one day redeem himself. He can’t bring back the dead. What he did was wrong, period. Those of you advocating an eye for an eye; might I suggest taking up residency at Afghanistan. Y’all would be so happy there.. Some have even gone a step further, asking what if it was Jack’s wife n kid who died. I’d say, for fuck’s sake, plug your indignant bleeding hearts and tell me this, instead of Couch, what if it was your, two-bit, worthless piece of shit, son at trial??

    I’d love to see where you assholes stand, THEN.

  8. Sio

    This comment under #5 caught my eye:

    “…but Scott Brown, one of Couch’s attorneys, pointed out that his client could have been freed in only two years if Judge Boyd had sentenced him to 20 years. ‘She fashioned a sentence that could have him under the thumb of the justice system for the next 10 years,’ Brown said.”

    So the defense attorney’s claim that probation and rehab resort was a stiffer sentence than a 20 year sentence? With a 20 year sentence he could be freed after two years, clear of any parole conditions similar to what he ended up getting? If 20 years in prison was actually so much better than 10 years parole, did the defense fail to competently advocate for their client?

    That assertion raises so many questions.

    • Fun point. In trying to justify a much criticized sentence that favored his client, he argued that he was less successful than he might have been. Of course, a sentence might have been tougher in fact but still one his client would prefer, and that’s his real job—getting what the client wants.

  9. “This is a sentence crafted to reform and treat a child whose life might still be salvaged”. As opposed to some lives that ain’t?

  10. Having a poor son serving forty to life for a crime committed as a juvenile offender, I struggle over this verdict. I would like to attribute loftier ideals to her sentence. That said, when the same judge has a record of incarcerating poor defendants of color without the same “careful consideration”, it becomes a challenge. I think the issues here are far more complex and it is time we started having intelligent discourse about the criminal justice system, crime, and the rehabilitation of people. Our present system is woefully broken and too often Justice becomes the best defense money can buy, or a political aspiration for personal career advancement. Meanwhile Juveniles have few resources, poor parents fewer, and the cycle continues. If we took money out of the equation all the way around, if we removed race and other predispositions for prejudice, what would justice look like then?

    • I have examined the record of the judge, and while its impossible to rule out bias, the cases where she gave harsher sentences to minority defendants are materially distinguishable.

      The quality of criminal defense will always have an effect, and available resources will always affect the availability of the best defense. That doesn’t mean all indigent defendants get poor representation or the money always buys a good defense. But that inequity is impossible to change. Impossible, unless you would advocate everyone getting equally bad representation. I don’t find that a responsible solution.

  11. Jelle

    The judge suffers from affluenza, clearly.

    • Is that based on any actual thought, or just a hit and run burp?

      • Jelle

        Affluenza is non-existant in medical terms. I cannot understand however that no punishment is applied next to a treatment of that kid. And most of all: why is nobody confronting these parents in court? Most probably where I live they’d risk being taken out of their parenthood for their irresponsible behaviour.

  12. alex

    the judge should be hanged and ethan couch should be put in the electric chair ,

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