You may recall the so-called “Affluenza” case of 2013, which I wrote about here.
Ethan Couch a Texas teenager from a rich family, killed four people in a drunken-driving crash (he also had no license) and crippled a friend riding with him. Instead of jail time, the 16-year-old was given probation mandating expensive counseling and treatment by a judge who found herself vilified far and wide. Now this, from his lawyers, Reagan Wynn and Scott Brown:
“We have recently learned that, for the last several days, the juvenile probation officer has been unable to make contact with Ethan or his mother with whom he has been residing.”
A video surfaced showing Couch playing beer pong, which is a violation of probation that could send him to prison. The assumption is that he had fled to avoid that result, and may have even left the country. The Washington Post reports that The FBI and U.S. Marshals Service have joined the search for Couch, who is now considered a fugitive.
So, I am asked, how do the Ethics Alarms observations on the original sentence stand now, since it is clear that the judge’s attempt to reform Ethan without locking him up has failed?
The answer is, having read what I wrote initially again, that I wouldn’t retract a word.
Here’s what I wrote, and my comments now:
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.
This still is true. The fact that hindsight bias now shows that her sentence didn’t accomplish the desired results does not prove that it was indefensible based on what she knew when she made it.
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.
Again, this is still correct. The lawyer did his zealous best for his client. He is not responsible in any way for the client’s subsequent conduct.
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.”
“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.
Amazingly, the news media is still misrepresenting the case by flogging the “affluenza” angle. Here’s what the Times story says…
“Two years ago, a Texas teenager who killed four people in a drunken-driving crash was given probation after a defense witness suggested he suffered from “affluenza,” a term used to describe psychological problems that can afflict children from wealthy families.”
As with the news reporting in 2013, this deceitfully suggests that the “affluenza” defense was influential in prompting the lenient sentence. Yes, the sentence occurred “after” the presentation of the “affluenza” defense; it also occured after the 2013 World Series. The fallacy is called post hoc ergo propter hoc, and sadly, most people fall for it regularly. The news media is supposed to teach them otherwise, not encourage logical fallacies.
Here is the willfully stupid Above the Law Headline:
“So Maybe This Affluenza Thing Really Was B.S. — Arrest Warrant Issued”
Anyone who thinks Couch’s conduct has any bearing on the “affluenza” theory’s validity at all has no business writing about law, policy, or anything that involves basic logic.
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.
This is essentially the point I just made above.
4. (cont.) 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.
The fact that it didn’t work in this case doesn’t mean her reasoning was wrong.
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.
True then, and importantly true now that Couch has violated probation.
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.
Nothing has changed that would make me alter this.
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 her answer to that question is yes.
This is not germane to the new developments.
To sum up, the fact that any sentence doesn’t work the way a judge hopes proves nothing, other than that the sentence didn’t work. Most sentences don’t “work,” with the exception of the death sentence, which at least makes sure the murder executed won’t kill again. I didn’t agree with the light sentence Judge Boyd gave Couch, but unlike many sentences analyzed here, it wasn’t indefensible, and certainly didn’t deserve the kind of furious condemnations it received at the time. The sentence might have turned out well, with Couch taking advantage of his second chance and becoming a model citizen…and if that happened, it wouldn’t have proven that Boyd’s compassionate sentence was right, either.
The time to analyze whether a decision is ethical is when it is made and only then, because what occurs afterwards had no impact on that decision. Our tendency to judge past decisions by subsequent events that the decision maker had no control over is consequentialism and consequentialism makes us timid, superstitious and dumb.
Of course nothing I wrote in 2013 is changed by what Ethan Couch has done now.