Comment of the Day: “Ethics Observations On The “Affluenza” Sentence”


I don't think this is the same "Theodoric of York" who authored this excellent "Comment of the Day" least I hope it isn't.

I don’t think this is the same “Theodoric of York” who authored this excellent “Comment of the Day”…at least I hope it isn’t.

The heat/ light ratio in the comments to the post about the controversial sentencing of a 16-year-old scofflaw in Texas has been depressing, but among the rational, measured, well-considered and thought-provoking responses by those who actually read the post, this one, by new commenter Theodoric of York,  is a winner. His politeness is especially appreciated among all the posts calling me names that would shock my mother. I hope he comes again, and often.

I’ll have some further comments after he’s had his say. Meanwhile, here is Theodoric of York’s Comment or the Day on the post Ethics Observations on the “Affluenza” Sentence.

Disclaimer the first: I’m not an attorney, nor do I play one on TV. Disclaimer the second: I have no knowledge of Texas law regarding juvenile justice, nor do I have any knowledge of Texas state law regarding negligent vehicular homicide, nor do I have any real knowledge of that state’s laws regarding DUI, homicide, manslaughter or murder. And yes, I know the difference between murder and negligent vehicular homicide, and I am also aware that young Mr. Couch is a minor. Disclaimer the third: I have not read Judge Boyd’s actual ruling, nor have I seen actual video of her sentencing. If someone could provide a link to that (if a link exists), it would be appreciated. That being said:

Regarding point 1, Prof. Marshall says: ” I have no idea whether Judge Boyd’s sentence was appropriate or not, and neither do you, nor does …[anyone else] that didn’t sit through the trial.” Fair enough, at least in part: none of us on either side of this issue heard all the testimony given or all the evidence. The vast majority of people commenting on this are also presumably not attorneys. However, to this layman (and to many others), something tastes horrible here. Four people are dead, at least two others are seriously injured (at least one for life), and Mr. Couch’s actions are not to be given light consideration as simple negligence. No, this isn’t murder – presumably young Mr. Couch didn’t see people on the sidewalk and tell his friends, “Hey, watch me mow these people down!” However, Mr. Couch began the evening by ingesting Valium and committing a minor crime (theft). Mr. Couch then drove while intoxicated, a very serious criminal offense, and proceeded to cause by his actions the deaths of four people. Now I may not be an attorney, but to this layman that seems like pretty serious business. Had he been an adult, this almost certainly would have garnered him time in prison. Again, I don’t know what Texas law calls for in a case of negligent homicide, but it doesn’t seem like the sort of probation Mr. Couch received is par for the course.

Regarding point 2 and the defense’s use of “the affluenza defense”: it’s true that we don’t know if this had any bearing on the judge’s decision. However, it should be duly noted that affluenza is not a recognized mental disorder – it’s not in the DSM, and as Anderson Cooper rightly pointed out, we used to call that “being a spoiled brat”. No, it’s junk science, no different than Scott Brown and his cohorts arguing that Couch was demonically possessed or that little gremlins grabbed the wheel and forced him to kill four people, or that his astrological sign made him do it. Of course Brown has an obligation to serve the best needs of his client, but this is stretching it more than a wee bit.

Regarding point 3: isn’t referring to one of the sources as “reliably truth-challenged” an ad hominem argument? Besides, suppose the blog in question (an opinion blog with a political bias) is wrong 80% of the time, it doesn’t necessarily mean it’s wrong this time. Logical fallacy, professor… Also, the judge did agree with the defense that rehab and probation was warranted, so at least in one sense she “sided with” or “bought into the arguments of” the defense. Given the treatment of other defendants who have caused the deaths of others (and yes, I’m aware those engaged in deliberately violent behavior), I’m inclined to believe that Mr. Couch’s demeanor in court, the fact that he may not have looked like others, and that he could afford much better attorneys than other defendants *might* have entered into Judge Boyd’s decision. In any case, you have to ask whether justice was served, and I think what angers so many (myself included) is that Mr. Couch is going to a facility that looks like a luxury hotel, complete with horseback riding, yoga, and cooking classes – Dr. Dick Miller indicated that “they’ll take his XBox away from him” during his interview with Anderson Cooper on CNN. Cry me a river…

Point 4: I’m glad the judge indicated that Couch was responsible for his actions, I only wish the sentence would have been commensurate with the gravity of his actions. Whether the parents are footing the bill or not is something that doesn’t concern me, and it could well be that they have enough wealth that $4.5 million over 10 years may be a minor hiccup financially. As you pointed out, Judge Boyd also told the families of the victims that no sentence could ease their suffering. Fair enough, but this sentence was hardly a balm, and at least on the surface it looks like it doesn’t serve justice. Maybe the judge is playing 10th dimensional chess or something, but I don’t really see any evidence that Couch is being held to account for his actions. I sincerely hope I’m wrong, but I also don’t see anything but the good word of Dr. Miller that this program will turn Couch into a responsible person.

Point 5: See above regarding the toughness of the sentence. I’m not inclined to believe that horseback riding and yoga and cooking classes in a facility that looks like it deserves a couple of Michelin stars is “tough.” My apologies if your mileage varies.

Point 6: This is where I think the theory of justice employed by the judge and the other cases involving strong sentences is relevant. I don’t necessarily *disagree* with the sentences given to the others (and again, I recognize that they were acting violently and Couch was acting with reckless disregard and negligently). However, I disagree with *this* sentence. On the notion that Couch got this sentence because of his family’s wealth: it looks like a certain fowl and it walks like one: it may not be a duck, but it sure as hell is quacking like one.

One final note regarding the judge’s ethics: does she not have an obligation to the ideal of “equal justice under law,”a notion that’s enshrined in the Constitution under the 14th Amendment and inscribed at the entrance to the US Supreme Court building? It would be instructive to see how she has handled any other juvenile DUI cases. As it stands, this verdict is one that, at least on the surface, doesn’t look like it either serves justice or equal protection under the law.

Thank you for your time.

I’m back. regarding Theo’s first point: I agree completely. At a gut level, the sentence feels wrong, and a gut level is where most of its critics and much of the news media seems determined to stay. I have never said that I liked the sentence, or that I would have duplicated it, were I the judge. Regarding the second point: I think calling “affluenza” a condition was a stretch indeed, and reportedly the psychiatrist whop used the term now regrets it. I don’t think it is at all a stretch to say that a child’s family and upbringing have left him without any sense of ethical values, compassion or responsibility, and that is really all that was being alleged here. The same defense has been made, and accepted, routinely on behalf of ghetto kids and children raised in unstable families. I think it’s framing was junk; the argument itself is well within ethical bounds. Regarding point three and the Daily Kos: there is no such thing as an ad hominem argument against a source. The Daily Kos is an unreliable source, biased, dishonest, and untrustworthy. I so stated up front. I had already stated that the representation of the sentence was misleading, and was not using the previous record of the Kos to prove  anything. My description of the site as “reliably truth-challenged” simply meant, in context, “They do this stuff all the time.” And so they do. As for the fact that the judge “did agree with the defense that rehab and probation was warranted,” that is insignificant. Every defense attorney wants that; it’s not an argument, it’s an objective. The news stories all used the “sided with” wording to suggest that Boyd “bought” the affluenza defense. That was misrepresentation.

On point four, I don’t disagree with Theo’s thoughts here at all. I do think the chances of Ethan being reformed by the judge’s formula, however slim, are better than his chances being sent to prison until he was a middle-aged man, his life ruined. I don’t have a lot of hope for him.

Point five: I think this is just wrong, and shows unfamiliarity with treatment centers. Yes, the expensive ones try to make the experience less miserable than they might be, but if the place isn’t a sham, it will not be any fun. The question is, will it have the desired effect? We shall see.

I think point six is misconceived as well. All sentencing guidelines emphasize tailoring the sentence to the individual and the facts of the particular case. I have not seen an example raised that would sustain an “equal justice” challenge. Show me another teen in a drunk driving vehicular homicide case who the same judge sends away for a decade, and I might be convinced. The real conundrum is this: if comes before the same judge a poor, black defendant, like Couch but poor and a minority,  whose parents cannot afford the private treatment, and Boyd is convinced that the state programs don’t work, would her decision to sentence that kid to prison as the best option available be evidence of bias, or evidence of pragmatism?

36 thoughts on “Comment of the Day: “Ethics Observations On The “Affluenza” Sentence”

  1. Never thought I’d ever use this phrase, but my response to your last sentence might be this; “hate the system, not the (wo)man”. If the state programs suck that badly, something bigger is off then the judgement of a single judge.

    Also, given that Theo’s a newcomer, might be best if you could inform him of your response and give him a chance to talk back, if he’s just bookmarked the original post and doesn’t plan on following the rest of the blog.

  2. Just a minor observation in response to Theodoric’s point six you state “All sentencing guidelines emphasize tailoring the sentence to the individual and the facts of the particular case.” This is not a true statement in that there are many states with mandatory minumu sentences for drug cases and well as the 3 strikes you’re out laws. Both of which tie a judges hands when it comes to sentencing defendents in certain cases.

    • Those aren’t guidelines, either. Those are laws that eliminate discretion, so they are not relevant here. I’m speaking of the various sentencing standards like those developed by the ABA. Neither standards nor guidelines are relevant when the state (unwisely) uses a one-size-fits-all system.

  3. And with all of that said, and I apologize if this has already been said, but….if I were wealthy, I would be incensed at the idea that being affluent precludes one from teaching basic morals and values to one’s offspring.

  4. More candidates for rehabilitation:

    “I don’t think they knew what they were doing. I don’t think they knew what they had,” said Los Angeles County Sheriff’s Lt. Arthur Scott.

    As the home was being picked over, one of the few remaining possessions was the snow leopard, stuffed and serene. The youth suspected of snagging the leopard told detectives he grabbed it simply because “all the good stuff was gone,” Scott said.

    Told that it was worth more than $250,000, the teen asked, “How many zeros is that?” Scott said.
    Those who were arrested appeared to be “kids of means,” Baca said. The teens face a range of charges, from trespassing to grand theft, which carries a possible jail sentence.

    Source :,0,4067684.story#ixzz2nYJzjLXc

    I wasn’t being sarcastic with the “rehabilitation” remark. They’re clueless, not evil. Dangerous to others though, yes.

    Also I suspect wealthy enough so that they won’t face punishment, just efforts at rehabilitation. Unlike the poor.

    Sentences have to satisfy a number of conditions. They have multiple goals.

    The least worthy, and least justifiable, is the desire on society’s part for Revenge.

    The most worthy is an attempt at converting a liability into an asset – rehabilitation. If they have any form of conscience, just making them aware of what they’ve done can be enough.

    Restitution is in there too, making good as much as possible the damage that’s been done.

    Then there’s deterrence: making the sentence so unpleasant that others will be discouraged. This only works on rational criminals, and unfortunately, most aren’t. Juveniles especially.

    Finally, there’s getting them out of circulation for a while, so they won’t re-offend during that time. A last resort when attempts at rehabilitation fail.

    Kids from wealthy backgrounds will learn entirely the wrong lesson if they get a slap on the wrist with a wet noodle. Conversely, cutting their hands off, maiming them for life is also inappropriate. Putting them in “colleges for crime” – no, that’s out too.

    Something that will drive the message home if they’re salvageable, but without doing lasting harm is needed. But if rehabilitation fails, their access to wealth, hence power, means they have to be removed from circulation for a long, long time. They’re too dangerous otherwise.

    All of this I’ve learnt, not from law school (I have no legal training), but reviewing 5 years of reported cases in the Westlaw database, quality checking every word, every line. In the process one can’t help but learn something from sentencing judges’ remarks.

    • This is exactly the point I was going to make as well. Sentencing serves multiple purposes, but this sentence, in particular, seems to eschew most of them in favor of only rehabilitation, and also fall in line with the OP’s comments:

      “I don’t disagree with Theo’s thoughts here at all. I do think the chances of Ethan being reformed by the judge’s formula, however slim, are better than his chances being sent to prison until he was a middle-aged man, his life ruined.”

      Read that again. The OP’s focus is also solely on rehabilitation and attempting to prevent Ethan’s life from being ruined.

      The problem here is, Ethan’s life was already ruined by his parents lack of supervision and his own actions in killing four innocent people with blatant disregard for the lives of others. Sentencing him doesn’t “ruin” his life, it merely illustrates that there are consequences for such decisions. Putting people in jail isn’t what “ruins” their life, it is the consequence of them ruining their own life already.

      All putting him in rehab for an undetermined period of time (with probation to follow) does is reinforce that his lack of judgment and empathy has no long-term consequences.

      And the part that really offends me about using that language, is those are the same kinds of rationalizations we see in teen sexual assault cases (especially involving perpetrators who are on sports teams). There’s always this focus on not “ruining” the lives of the alleged perpetrators, rather than actually holding them accountable for their actions.

      We, as a society, generally do not extend this same consideration to poor and minority perpetrators, that’s why everyone is crying foul.

      What should have happened here? A combination of rehab, plus *some* jail time (5 years maybe?), plus probation would have forestalled the outcry, provided a needed balm to the victims families, and had a better chance at turning him into a productive member of society and perhaps reversing the ruin HE and his parents already made of his life.

  5. From 2008 to 2011, employers stole $390 million worth of pay that workers earned. Just half was ever recovered, and even when workers were able to prove wage theft and win a legal judgment in their favor they rarely saw a dime of what they were owed: 83 percent of successful wage theft claims failed to produce money for the wronged workers.

    Wage theft steals more money than all store robberies and bank heists combined.

    It makes good business sense to violate laws for gain when it can be done with impunity.

    For at least half a decade, the storied British colonial banking power helped to wash hundreds of millions of dollars for drug mobs, including Mexico’s Sinaloa drug cartel, suspected in tens of thousands of murders just in the past 10 years – people so totally evil, jokes former New York Attorney General Eliot Spitzer, that “they make the guys on Wall Street look good.” The bank also moved money for organizations linked to Al Qaeda and Hezbollah, and for Russian gangsters; helped countries like Iran, the Sudan and North Korea evade sanctions; and, in between helping murderers and terrorists and rogue states, aided countless common tax cheats in hiding their cash.

    “They violated every goddamn law in the book,” says Jack Blum, an attorney and former Senate investigator who headed a major bribery investigation against Lockheed in the 1970s that led to the passage of the Foreign Corrupt Practices Act. “They took every imaginable form of illegal and illicit business.”

    That nobody from the bank went to jail or paid a dollar in individual fines is nothing new in this era of financial crisis. What is different about this settlement is that the Justice Department, for the first time, admitted why it decided to go soft on this particular kind of criminal. It was worried that anything more than a wrist slap for HSBC might undermine the world economy.

    “Had the U.S. authorities decided to press criminal charges,” said Assistant Attorney General Lanny Breuer at a press conference to announce the settlement, “HSBC would almost certainly have lost its banking license in the U.S., the future of the institution would have been under threat and the entire banking system would have been destabilized.”

    Too big to fail, too big (or rich) to jail. So of course this attitude is transmitted to future generations. What else do you expect?

    There have always been such problems, so many that, like Hollywood stars entering rehab or getting divorced, it’s something of a cliche. But I see it increasing beyond anything that’s gone before, as wealth concentrates, and it’s far cheaper to buy legislators than invest in plant and equipment.

  6. “Teenage Affluenza” is the name of a very well-made short promo spot by World Vision promoting their 30-Hour Famine events (teens raise money to fight hunger by getting sponsors to go hungry for 30 hours, usually with a group and with accompanying social projects.)

    It’s worth a YouTube search; the spot is very well done and funny. It is also AT LEAST a few years old. I was showing it to teens back in 2009 or so and I don’t think it was new then.

    This makes me think that whoever originated the pun definitely wasn’t the first and might have stolen the idea.

    Also, in the World Vision ad, “affluenza” is a joke and not to be taken seriously at all. Which makes me wonder if someone actually saw it online and thought that it WASN’T a joke, or simply thought “cute, I can steal this.”

    Or, it could all be just a great big coincidence.

  7. With regards to logical fallacies (which intrigue me): No, you cannot commit a true Ad Hominem fallacy against a source, as it means “against the man.” However, the flavor of it isn’t quite right either. An Ad Hom would be saying something like “of course you can’t trust them to be fair about this, they are left wingers who hate rich people” or “they are right wingers who hate mercy in the justice system.” or even just “They’re based in Georgia, and you know southerners aren’t the brightest crayons.” It’s an irrelevant attack on credibility, possibly with an insinuation that it is somehow connected to the truth.

    The more accurate fallacy to be commited against a source is “Poisoning the Well,” where a line is dropped into speech that indicates the source is not to be trusted, again, in an irrelevant way. We see this all the time when some think tank or other is identified as a liberal or conservative think tank on the news- they are setting us up to dismiss everything the group says as partisan. However, it’s not a true fallacy to say “this source is often found to be untruthful, govern yourselves accordingly.” It would be a fallacy to say that, given his example, an 80% rate of lying GUARANTEED that a given statement is a lie, but if you can point out that 4/5 of the statements from a source are untrue it is perfectly legitimate and relevant to use that as an indicator of their discretion and likeliness to be telling the truth.

  8. “On point four, I don’t disagree with Theo’s thoughts here at all. I do think the chances of Ethan being reformed by the judge’s formula, however slim, are better than his chances being sent to prison until he was a middle-aged man, his life ruined. I don’t have a lot of hope for him.”

    Honestly, this young man’s life was ruined before he ever got behind the wheel of that vehicle, the crime that he committed was merely evidence of that ruin.

    Characterizing detention as the “ruin” of his young life is IMO mischaracterizing the situation and providing far too much empathy for someone who just killed four people and paralyzed one through criminal negligence. Not just “oops I made a mistake” but “I have a criminal disregard for the well-being of others.”

    The goal of our penal system is a combination of removal of risk from society (for repeat offenders), punishment for crimes, and rehabilitation. While rehabilitation is important, especially in a situation like this, it should not be the sole basis for judgment. In this case, I fail to see how the defendant is receiving any substantive punishment at all.

    So I ask, should we not expect that he would receive actual punishment, given the multiple criminal acts he perpetrated to create this train-wreck of lives lost, rather than probation and a very suspect rehabilitation environment?

  9. Obviously the person writing this article is trying hard to be a jerk. And succeeding at it. Our innate sense of fairness has produced laws, not the other way around. My innate sense of fairness is says this is wrong. There are no hidden pertinent facts that I need to know — we would have known them by now.

    And it’s repulsive that you respond to the pertinent comment that sentences must not be tailored to the recipient’s wealth with a pickung and choosing game that reeks bias.

    Ho ahead now and amaze me with an equally pertinent reply, “Professor”.

    • I’ll amaze you when you properly interpret what I wrote.

      If you don’t concede that minors deserve consideration and mercy in the system, than you have no innate system of fairness, and if you can’t tell the difference between drunk driving and assault, your analytical powers aren’t up to code either.

      I guess the response you find “repulsive” is this one, regarding mandatory minimum sentences and 3 strikes you’re out, which the vast majority of scholars and researcher believe are just terrible policy, and essentially stop judges from judging:

      “Those aren’t guidelines, either. Those are laws that eliminate discretion, so they are not relevant here. I’m speaking of the various sentencing standards like those developed by the ABA. Neither standards nor guidelines are relevant when the state (unwisely) uses a one-size-fits-all system.”

      This is 100% true.
      And lose the snark. I’m not even sure who you are calling a jerk, but you don’t have standing to do that yet.

  10. Forget rehabilitation just yet. The boy must spend some time, because it’s only fair, and then we can spend some resources to rehabilitate him. All the blabber about this interpretation or that interpretation of rules and regulations or about just how much freedom the judge is allowed in her sentencing can only serve to complicate this simple matter. The correct interpretation of law is that which alingns with common sense. Justice pays back, only then do we rehabilitate. That’s why it’s called justice, and not blunted justice, or opportunism. The boy must serve time for those deaths. There ain’t no hidden gem of evidence to be uncovered here that will tip the balance either. If there is one, let us find it in our pursuit for justice for the four dead and one paralyzed.

  11. A follow-up:

    At the time, the teen’s parents said they would pay for mental health treatment at a private facility in California, which costs about $35,000 a month, but State District Judge Jean Boyd opted to sent Couch to a state mental hospital in Vernon, where the monthly tab for treatment is about $21,000.

    His parents will be charged $1,170 a month, a juvenile court official testified Friday.

Leave a Reply to viridium Cancel reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.