A sixteen-year-old kid gets a bunch of buddies in his truck. They steal a couple cases of beer and go speeding down a dark road with lots of blind corners.

Suppose that he gets pulled over at mile marker 20 and is taken into custody for DWI. It’s his first brush with the law. Should he go to prison?

I suspect that the answer is “no.” Prison is gross overkill for a sixteen-year-old’s first DWI. We expect sixteen-year-olds to do stupid things, and we don’t toss kids in prison for being kids. Juvenile court is about the need for supervision; driving drunk indicates a need for supervision, but not for warehousing. The kid on probation can be guided to make better choices and can be taught to work to make the world a better place. Meanwhile, there’s a sword hanging over his neck: if he violates the probation, he can be sentenced to custody. Prison is for people we are afraid of. Probation is for people we are mad at. Prison is a school for crime. Send a sixteen-year-old to prison, and you’re creating a lifelong criminal.

Suppose now that, instead of getting pulled over at mile marker 20, the same kid runs over and kills four people (one of them had run off the road; the other three had stopped to help) at mile marker 21.

Prison? Your answer might be different. Why? The kid made all the same choices and took all the same actions in both; it was just misfortune that put the pedestrians in the path of his bad decisions in the second scenario. The only difference between the two scenarios is the rotten luck, outside the kid’s control, in the second.

“Affluenza” has been in the news lately, because of this case in which a psychologist purportedly argued that the kid in the second scenario should not go to prison because children from richer families “have a sense of entitlement, are irresponsible, make excuses for poor behavior, and sometimes dabble in drugs and alcohol.”

The judge put the kid on probation. The aptly named psychologist Gary Buffone, who will not only give opinions in his own field without all the facts, but will do so in other fields as well, opined:

“Essentially what he (the judge) has done is slapped this child on the wrist for what is obviously a very serious offense which he would be responsible for in any other situation…. The defense is laughable, the disposition is horrifying…not only haven’t the parents set any consequences, but it’s being reinforced by the judge’s actions.”

I don’t know that affluenza was actually a factor in sentencing. But I doubt it. It’s a blatantly silly argument—an advantaged upbringing is an aggravating factor, not a mitigating factor—which is why people are talking about it. I suspect that the judge rolled his eyes at the affluenza defense, but found other reasons not to send the kid to prison. (Perhaps Richard Alpert, who tried the case for the State, will weigh in.)

People like to be shocked and outraged. “Judge gives probation because of affluenza” is more shocking and outrageous than “defendant argues affluenza and judge gives probation anyway.” If someone were to write about the reasons a judge might give someone—rich or poor, young or old—probation for an offense that took four lives but, were it not for four families’ rotten luck, would have been a misdemeanor, nobody would even read that, would they?

48 responses to “Affluenza?”

  1. It’s sort of like a gilded Twinkie defense, but more overarching and less biological.

    I was saddened to see that the criticism (at least that I have come across) focused far more on the kid being rich than anything else. So the driver was born to wealthy parents, and did not want to go to prison. Why is that so wrong? Most people don’t want to go to prison, and many people would apply the resources available to them to keep their kids out of prison. All understandable. It seems that the criticism in this case focused away from the judge, and quickly just became an avenue for people to engage in carping over class warfare.

  2. If the defense’s argument is true, then the kid has been the victim of lousy parenting in the form of swooping in to make his previous lesser screw-ups consequence-free.
    Put in those terms, I don’t think “parents didn’t do their job” is all that unusual as a mitigating factor.

      • according to your logic we should never punish anyone for recklessness – if we are to adhere to your argument that “rotten luck” should just not be taken into account, and rely solely on intention. However, last time I checked manslaughter does not require intention.
        I get your rely on rehabilitation as a purpose of sentencing. However what deterrence or denunciation effect do you think this sentence realistically has? Probably none.

  3. Mr. B., first time I’ve heard about the ‘Wahoo!’ (not sure what criminal category shop-lifting beer is in and / or, the time it was committed or, the total amount of stolen goods?). But, with that ‘crime’ being mentioned in the opening it leads me to addressing the additional crimes’ not mentioned anywhere.

    Everyone can live with ‘Probation’ being a One-Foot-In & One-Foot-Out appropriate approach to punishment for first timers’ (actually guilty of a crime) in an effort to Shock ’em into reality. But, when the -‘First’ crime out of the shoot involves ‘Death’, the Judge and / or Jury should consider including mandatory incarceration in one man cells on Units designated for Death related crimes only (with additional time given to those that communicate with other criminals), with treatment / rehabilitation being the target. ‘Not’ simply fresh meat for rapists, those with nothing to loose and banks for strong armers’. To include a substantial amount of time in mandatory ongoing treatment / rehabilitation once deemed release worthy. The Prison only method (mix & match) has proven to result in learning of criminal trades by being forced into close association, not to mention revenge killings, etc…

    *I’ll let someone else consider the other youths and there criminal activity and any punishment they did or, didn’t rec.

    #1. (Possible) Youths out after Curfew?

    #2. Unsafe overloading of passengers’ in a Motorized Vehicle (something about seat-belts goes here).

    #3. Speeding.

    #4. Reckless driving / endangerment.

    #5. (I believe it’s a crime ‘If’ they failed to render aid?

    #6. Gang (organized / planned) activity in the course of committing a crime.

    #7. DWI.

    #8. Previous criminal activity? (juvenile delinquency).

    #9. While petty at best, someone didn’t pay taxes.

    #10. Littering. (unless all of the beer cans where located at the scene).

    AFFLUENZA = leads to the utilization of race cards being played – “I bet if I was white I wouldn’t be in here” & simply proves that the criminal justice system is rigged, Not broken.

    POORFLUEZA = leads to the utilization of race cards being played – “I bet if I was white I wouldn’t be in here” & simply proves that the criminal justice system is rigged, Not broken.

  4. As I’ve come to do on Scott’s website…I’ll cop to my legal ignorance in advance.

    That said, I feel as though this is one of those areas of law there’s a vested public interest in laypeople understanding. Up here in Massachusetts if you get drunk, drive, and kill someone…It’s vehicular manslaughter and you will go to prison. Just the way we (society in Massachusetts) wants it.

    • The difference between DWI and vehicular manslaughter is just dumb luck. Texas law is much more rational than most states’ in that sentencers (which can always be juries) on most cases have wide ranges of punishment to consider—on a first-time intoxicated assault, for example, probation to 20 years in prison (for an adult)—and so can consider more than just the cliffs notes version of the offense.

    • In Massachusetts, the sentence for felony vehicular homicide (which is when someone was intoxicated and kills a person with a motor vehicle) ranges from 1 to 15 years in prison. But if he copped a plea, he would plead down a grade to a lesser offense. It may not be as prison-y as you think.

      As Mark says below, there is a critical point in death caused the drunk driving: The crime occurs when the drunk turns the key, starts the car (or truck) and drives off. Whether he kills or makes it home to sleep it off is pure, dumb luck. That the outcome is the death of another person is horrible, but doesn’t bear on culpability, which is the same regardless of whether someone is harmed or not.

  5. “A sixteen-year-old kid gets a bunch of bud­dies in his truck. They steal a cou­ple cases of beer and go speed­ing down a dark road with lots of blind corners.”

    And had taken valium.

    “Sup­pose that he gets pulled over at mile marker 20 and is taken into cus­tody for DWI. It’s his first brush with the law. Should he go to prison? … I sus­pect that the answer is “no.”

    The answer is “Shit yes.”

    “Prison is gross overkill for a sixteen-year-old’s first DWI.”

    Not if there’s also a DUI charge, plus seven reckless endangerment charges to stack up next to those.

    ” *** Juve­nile court is about the need for super­vi­sion; dri­ving drunk indi­cates a need for super­vi­sion, but not for ware­hous­ing. The kid on pro­ba­tion can be guided to make bet­ter choices and can be taught to work to make the world a bet­ter place.”

    Really? Because with this piece of work, his life so far consists of being taught for 16 years that there are no consequences to his actions, including raping a 13 year old. The rehabilitation will have to undo that deprogramming before it can start teaching him anything else.

    “Mean­while, there’s a sword hang­ing over his neck.”

    There’s a shiv hanging over his head in prison.

    ” *** Prison is for peo­ple we are afraid of. Pro­ba­tion is for peo­ple we are mad at.”

    I’m both when it comes to this kid.

    “Prison is a school for crime.”

    Gentlemen, your new self-absorption professor.

    “Send a sixteen-year-old to prison, and you’re cre­at­ing a life­long criminal.”

    Works for me.

    “Sup­pose now that, instead of get­ting pulled over at mile marker 20, the same kid runs over and kills four peo­ple (one of them had run off the road; the other three had stopped to help) at mile marker 21…. Prison? Your answer might be dif­fer­ent.”

    It’s not.

    ” ***[I]t was just mis­for­tune that put the pedes­tri­ans in the path of his bad deci­sions in the sec­ond sce­nario. The only dif­fer­ence between the two sce­nar­ios is the rot­ten luck, out­side the kid’s con­trol, in the second.”

    Yep. I hate charging by lottery too. In this case, it would make no difference.

    “The judge put the kid on pro­ba­tion. The aptly named psy­chol­o­gist Gary Buf­fone,”

    Excellent point. The psychologist has a funny name; he is not to be trusted.

    “who will not only give opin­ions in his own field with­out all the facts, but will do so in other fields as well, opined:”

    What facts was he missing? How are you privy to the fact that he missed them?

    ” *** I don’t know that affluenza was actu­ally a fac­tor in sen­tenc­ing. But I doubt it.”

    Me too. I’m pretty sure the judge was doing the crossword puzzle during this portion of the testimony and argument.

    “It’s a bla­tantly silly argument”

    Hey, it worked!

    “Peo­ple like to be shocked and out­raged.”

    There are four corpses in Fort Worth. I didn’t like being outraged by that.

    “’Judge gives pro­ba­tion because of affluenza’ is more shock­ing and out­ra­geous than ‘defen­dant argues affluenza and judge gives pro­ba­tion any­way.’”

    The list of things less outrageous than this sentence would take up a terrabyte.

    “If some­one were to write about the rea­sons a judge might give someone—rich or poor, young or old—probation for an offense that took four lives but, were it not for four fam­i­lies’ rot­ten luck, would have been a mis­de­meanor, nobody would even read that, would they?”

    I wouldn’t; I couldn’t care less.

  6. You have spent way too much time as a defense attorney if you can just disregard the deaths of four people so easily.

    He killed four people, the people who are shocked and angered over that are behaving normally. People should care. People should be angry. Four people are dead. It is normal to care about things like that.

    Sure some people are going to want more retribution than is appropriate. If it was my family I’d want to kill the guy. That is also normal.

    Taking the time to celebrate the fact that the person who did this will suffer no meaningful consequences is incredibly callous. Fine, you don’t care what happened to those people. Maybe have some class and keep that to yourself.

    • Who’s celebrating?

      The boy’s conduct and culpability are no different than they would have been had he been pulled over before the accident. It’s interesting, isn’t it, that the same actions with the same intent can trigger such different reactions because of sheer dumb luck?

      Anyway, the reason people think this case is about affluenza is because that’s what the mass media have written about. Having seen reporting running the gamut from competent to ignorant to malevolent in my own cases, I’m not banking on the media’s accounts. I’ll wait to hear from Alpert.

      • Ultimately it doesn’t matter why the judge ruled the way he did. Those people are still dead, their killer is still unpunished. Maybe you can’t understand why that sucks, but most people can.

        If someone burns down a building he is guilty of arson. Let’s say that, unbeknownst to our arsonist, their were people in the building and they died in the fire. Would you really argue that he has no responsibility for those deaths because his intent was merely arson?

        • I don’t agree that “on probation” is “unpunished.” It’s not the punishment you would wish. It might not even be the punishment I would wish. Had he gone to prison for two years, those people would still be dead.

          Why do we need to talk about arson? Because an arsonist might be more or less culpable depending on his choice of building—burning a building that is almost certain to be inhabited is worse than burning a building that almost certain to be vacant. But no, culpability does not depend on the random result of the crime.

          Retribution does, and we might well embrace retribution—it’s a fundamental human impulse—but I find that as a society we reject—or pretend to reject—retribution as an impulse beneath our better nature.

  7. “an advantaged upbringing is an aggravating factor, not a mitigating factor”

    Are you speaking here as a matter of morality, or as a matter of practicality — how a judge or jury would view it?

      • Is it? Though perhaps we’re differing on our definitions of “advantaged.”

        I’m always skeptical when the claim is “x is an aggravating/mitigating factor” if x is a background fact. Personally, I like to look at the particular defendant and particular crime for sentencing. A rich defendant might make me think, “He should have known better,” and a poor defendant might make me think, “Well, he didn’t know better,” but I would also think that the rich defendant would be less likely to be caught committing another crime than the poor defendant, thus, abstractly, this issue seems like a push to me. If a rich kid had really been brought up to believe that he could buy his way out of the consequences his actions might bring, why should that be held against him? The minor fact that I might loath him does not make him more or less morally culpable.

        Personally, I prefer for the punishment to match the crime, not the defendant, so I’m sympathetic to the point you made in your post. To me, though, the result of this sympathy is to seek greater punishment for DWI defendants rather than seek lesser punishment for intoxication manslaughter defendants. I think of every convicted DWI defendant as someone who has committed attempted manslaughter against me. “There, but for the grace of God go I” is a mentality I try to apply to both defendants and victims.

    • An advan­taged upbring­ing is not always a certain aggra­vat­ing fac­tor. Depending on the crime, an attorney can argue that because of his client’s affluence and social standing, the odds are better he can be rehabilitated without prison and go on to be a functioning, productive member of society. Whereas a defendant who is poor usually doesn’t have good insurance which would offer the same access to rehabilitative facilities and therefore he would be better able to utilize rehabilitation programs offered in prisons. This argument has been especially effective in DWI and drug cases.

      • I think you’re right, except that it isn’t exactly the advantaged upbringing that mitigates, but current circumstances. The self-made man who has the resources to go on to be a productive member of society gets as much of a break as—probably more than—the scion.
        Of course, we’re not as socially mobile as we like to pretend. Poor people generally had poor upbringings (or at least some disadvantage), and wealthy people generally had wealthy upbringings (or at least some advantage). So it is in a sense the upbringing that mitigates.

  8. Mark, you’ve stated several times in the comments that it is “dumb luck” that this boy killed four people rather than driving drunk and injuring no one, and that therefore it is unjust to punish him more severely than if he had killed no one.

    Is this an accurate description of your beliefs regarding all criminal punishment? Should a murderer get the same punishment as an attempted murderer? Should a man who recklessly fires a gun in a crowded city suffer the same consequences regardless of whether his bullet hits the wall or someone’s skull?

    Near where I live, a woman recently pleaded guilty in the death of her young child. She drew a bath for the child, put him in the tub, went to get a towel, and then got distracted by a phone call and later her husband coming home. Ultimately, a few minutes passed, and by the time she returned to the bathroom, the child had drowned. Had the child stayed upright in the tub rather than falling facedown, or had his mother returned to the bathroom a minute earlier, he would have lived, and she would have faced no punishment whatsoever. Under your view, should she also deserve no punishment for the child’s death, since it was “pure dumb luck”?

    For that matter, should we eliminate criminal negligence and recklessness as culpable mental states, since reckless actions can (and often do) produce no harm?

    The law punishes based on both intent and result, as I believe it should. On a more general level, the issue we are discussing is that of moral luck. It is a complex issue, and while I don’t think Mark’s view is completely indefensible, I do think it is wrong. My views on the subject are fairly accurately summarized in this series of posts by economist David Friedman:

    Mark, if you’d like to clarify and argue for your view, I’d be interested in hearing it.

    • It seems to me that Friedman’s “fairly accurate summary” of your views is simply an exploration of a complex subject, with no views expressed.

      I think that exploration is easily enough answered in the context of this post. He writes, “Seen from this standpoint, the legal distinction is a consequence of our imperfect knowledge.” In this post I posit perfect knowledge: we know that if the cop hadn’t intervened in Scenario One it would have become Scenario Two (or, if the kid was driving in the other direction, if the pedestrians hadn’t been on the shoulder in Scenario Two it would have become Scenario One).

      I’ve written at some length about my views of desert and retribution. It’s been a while, but it used to be regular fodder here.

      p.s. The death of a young child is “no punishment whatsoever” for the mother? You’re a cold, cold, man.

    • The mother used in your illustration should not have been charged with anything, and likely would not have been even a decade ago. But current society demands every death be punished and therefore no one can have an accident anymore.

      A similar drowning occurred here in Harris County a couple of years ago. The father was initially charged but the grand jury refused to indict. And rightfully so:

      No punishment The State can possibly conceive is equal to the punishment these parents put themselves through after the death of a child.

  9. First, this is a horrible tragedy for the people who lost their lives and their families. Their lives are damaged forever. Nothing can ever make them whole. Nothing.

    Second, what of the 16 year old? Who among us did not engage in reckless conduct at 16.? By definition 16-18 year old teens are stupid and have no clue as to life’s dangers. When I was 17, I drove up an exit ramp with a car load of kids. One of the more sober kids noticed and alerted me. Had he not alerted me, I could have killed half dozen people. I was not evil, I was 17 & stupid.
    I was like most other 17 year olds I knew.

    This boys family money is irrelevant. If anything it probably drew more bitterness toward him.

    Rehabilitation, Detterence and punishment are three commonly considered factors in reaching a just sentence.

    Probation is obviously not as sever as prison. Those who think probation is not punishment should go sign up for it if the don’t think it’s punishment. It’ is punishment.

    Deterrence is an important factor. I hear nothing to suggest that this young man poses a continuing threat. He has the rest of his life unlike the victims.
    But he will be shadowed by these deaths for all the days he is alive. He is deterred.

    Rehabilitation. At 16 this young man is at the right age for rehabilitation. He can be a productive member of society.

    Sometimes bad things happen. Aristophanes said
    ” Whirl is King”. He is right. There is a lot of randomness to life. Rather than pontificating about this case, any one of us could be sitting in that 16 year olds shoes or we could have been killed that night. That is a fact.

    None of this excuses the 16 year old. The judge tempered justice with mercy which seems very wise to me. Rather than condemning this judge,
    We should be grateful for a judge who makes his
    Decision based on what he thinks is right without regard to the popularity of the decision. We are not governed yet by mob rule.

    My heart goes to the families who lost loved ones.
    But locking up this boy where he would be raped and tormented for years to come would not be justice. A rare wise judge did his best with a very tough case.

    Robb Fickman

  10. I don’t understand why this kid’s financial circumstances or presence of absence of mental impairment matter at all…except if the mental impairment were due to an accident, for example, if he were suffering a seizure or an incipient diabetic coma.

    He killed four people.

    In my perfect anarchic world, the victims’ and their families’ Protection Agencies would demand (according to their contracts) recompense for their losses. The victims can’t be resurrected; the harm is done. The victims’ families then must decide–in consultation with their protection agencies–what constitutes “recompense”. It’s not quite as raw as the medieval Icelandic system, in which this would have been a civilized version of a blood feud…but close.

    Under a statist system, nobody is satisfied and certainly our notion of “justice” isn’t served.
    Both options are losers; he doesn’t go to jail, the victims’ families get nothing and their sense of justice is insulted. He does go to jail, they get nothing, their sense of justice is assuaged…but they still get nothing, and you victimize a third party–the taxpaying public.
    Under the anarchic system, at least there’s a possibility of some repayment without victimizing another party. Perhaps he works for the victims’ families for X number of years, “paying off” his debt. Perhaps they choose the punishment, which he or his family pays for.

  11. How about this:

    His state of intoxication is immaterial.
    His wealth is immaterial.
    There are no mitigating circumstances–no mechanical failure, he wasn’t having a seizure, heart attack, diabetic coma, etc.

    He was operating a potentially lethal piece of machinery. He directed that machinery in a manner which caused death and injury.

    He killed four people. His intoxication is immaterial.

    If we allow the intoxication to factor in, then we can argue that he voluntarily entered that state, and all evil that followed flowed from that decision. However it’s a dangerous argument; because it supports restraining all intoxicated people because “What if they…”–and we get today’s idiotic DWI regime. “What if” 0.08% BAC is dangerous? “What if” now 0.05%? It then supports all manner of restraint because “What if?” Further, that then degrades all personal responsibility; because now the State becomes the arbiter of “That’s safe”–and if it didn’t specifically prohibit one of the “What-ifs”, then that’s OK–even if common sense in a particular circumstance would militate against it. How about BAC levels that are calibrated against driving conditions, say 0.05 for night-time, but 0.08 for day, but zero tolerance when there’s ice on the road, except on holidays….you see where that leads?

    Rather, the fact is he operated potentially lethal machinery in a manner that caused death. He could have been an incompetent driver, or driving too fast for the conditions. He could have been texting, talking, leaning down to retrieve the cigarette he dropped, receiving fellatio, jamming to bitchin’ tunes, drinking a Slurpee. Or drunk.

    The cause–if it’s not mitigating–doesn’t matter. He killed four people.

    Mark I think that argues against your Mile 20 vs. Mile 21 scenarios; because being pulled over at Mile 20 saves him hitting Mile 21 and just gets him a DUI. I argue that all of the above–cigarette, Slurpee, tunes, texting, incompetence, intoxication–kill four people. He is responsible–regardless of cause (unless the cause is involuntary).

    My post before is simply about “what do we do now?” in statist vs anarchic systems; but our thinking on “is he guilty” should be much clearer first.

  12. It’s not possible to achieve a happy result no matter the punishment. That said, there is a choice to be made. Now that we have 4 less people in the world as a result of an accident that was the result of recklessness, do we want to destroy a 16 year-old, too? Or do we want a world where the 16 year-old might have an opportunity to still do good things? I would hope for the latter, but to get there, you have to make a leap in faith. I’d much rather make a leap in faith toward something positive than to shut the door to the prospect of redemption. Call me naive for being hopeful, but hopefulness provides a better quality of life than hopelessness.

    • and if it was your family that the little shit wiped out? Would you still be above retribution then?

      Why all the empathy for the criminal and none for the victim?

      • Yes, it would be the same if a family member was the victim. If it was murder, that’d be a different story, but I feel forgiveness is in order for stupid things people do (and hopefully regret). I can tell you I have done plenty of stupid things, and I am glad nothing backfired when I did.

  13. I am surely glad that this young man was not of any other ethnic background. He would surely be under the jail for killing four white people in Texas. Chances are he would have been sentenced to life in prison and maybe even death, mind you it is Texas. Even with that said there is a victim being left out, the young man that committed the crimes. This will follow him the rest of his life and he will be an adult that will eventually cost someone else their life due to reckless behavior.

  14. I know you’re a good lawyer and all, but this might be one of those places where the law is an ass. Maybe driving drunk should be ok unless you kill someone, then you get the full treatment. That makes as much sense as your suggestion that no matter what happened he’s just a misdemeanor defendant. Maybe retribution isn’t an all bad idea. Maybe his bad luck should count against him – remember, he voluntarily took the chance. It went very bad.

  15. I can’t see how anyone can argue against Mark’s point of Dumb Luck. If you go to any club, any happy hour, any christmas party, any anything with alcohol, you’ll see many more cars than designated drivers/people not drinking. No one is thinking “I’m going to hurt someone – WOOHOO” in advance. Most people that drink, have driven while legally intoxicated at some point. Only a minority result in accidents but it’s a lot of people so the # of people hurt is still high. It is dumb luck though, bad luck for everyone involved. 5 seconds later by any party (or earlier) and in most cases, there’d be no death, nor even an arrest. The shooting example is BS – if you try to shoot someone and miss b/c it’s hard to hit someone, you clearly had intent. In Mark’s example there’s absolutely NOT intent. Then again, there are a lot of people that support felony murder (like the poor homeless dude in NY shows) and it’s the same thing but worse. Thank Goodness for Defense Attorneys

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