Saturday, December 14, 2013

Ethan Couch and the media outrage machine

Grits tends to avoid topics that a) are widely covered in the MSM and b) tap into hot-button culture war issues fueling the never-ending outrage machine that's evolved in the era of online journalism. It's why you don't see much on this blog about the death penalty - the bloviating on both sides almost immediately trends to the pointless and online discussions add very little except forums for ever-more outraged foolishness.

Some topics, though, are difficult to avoid. Yesterday Grits did a radio interview that had been scheduled for several weeks. I'd even corresponded with the interviewer, at his request, about what topics we should cover. But the first question out of the box was about a Republican juvenile court judge in Tarrant County who this week issued a verdict of probation and treatment for a rich 16-year old named Ethan Couch who stole some beer, drove drunk, and killed four people. The 24-hour cable cadre picked up the story because an expert witness testified the youth suffered from "affluenza," claiming he'd been spoiled rotten and thus wasn't responsible for his actions.

That's a stupid claim, but as Mark Bennett pointed out, it likely had little to do with why the judge gave the kid probation. It's just that the real reasons wouldn't feed the media outrage machine or maximize the potential for the case to become an over-hyped, Casey-Anthony-style spectacle. And outrage is so much fun! Advertisers especially love it, and who doesn't enjoy feeling superior, especially to some rich asshole they've never met? This blog, though, tries to focus on policy, not personalities, and as the old saying goes among appellate lawyers, bad facts make for bad law. These are undoubtedly extraordinarily bad facts, which means that, on the policy front, little of value can be generalized from the episode that applies to more workaday cases.

Grits harbors little hope this lowly blog can inject any reason into the discussion, but let's at least try. For starters, stepping back for a moment from this episode, a probated sentence is hardly unusual for intoxication manslaughter, even for adults, and even when juries instead of judges do the sentencing. The Dallas Morning News reported back in 2010 that, "More than 40 percent of those arrested for intoxication manslaughter over the last 10 years never saw a prison cell. Instead, they got probation." What most of the outrage machine fails to understand is "why?" Reported the News:
Prosecutors, defense attorneys and judges say probation makes sense because intoxication manslaughter cases are incredibly difficult to prosecute.

Also, probationers are forced to get treatment they probably wouldn't receive in prison, and rehabilitation is less costly to taxpayers than punishment.

Most important, they say, a combination of treatment and probation-ordered rehabilitation makes the public safer.

"The reason it doesn't work to lock them up is, eventually they get out, and most times sooner rather than later," state District Judge Tracy Holmes said. "And when they get out, their addiction has progressed, and so they are more dangerous."

Prosecutors would like to send more intoxication manslaughter defendants to prison, but say the lack of substance abuse programs in Texas prisons forces them to pick between punishment and probation with rehabilitation.
In this case, the judge issued a probation verdict with mandated treatment and lots of people are mad at her. But jurors also frequently give probation or relatively light sentences for intoxication manslaughter, mainly because many can easily see themselves in the defendant's shoes. (Think Gabrielle Nestande.) Did you ever steal beer as a kid (after all, they can't buy it)? Have you ever driven while intoxicated?  Too many jurors can answer "yes" to those questions for intoxication manslaughter cases to be a slam dunk. In the back of their minds, a lot of people are thinking, "There but for the grace of God go I." The difference between their own experiences and the terrible destruction this kid caused was basically dumb luck.

The "affluenza" claim gave the viral outrage crowd plenty of red meat and, as is usual, media discussions have largely focused on "who is to blame?" for an ostensibly lenient verdict. But that's the wrong question. This episode was a tragedy and has destroyed families, causing immeasurable harm, and no good can come of it. That said, no matter how profound the grief of the victim's families, no punishment will bring back the dead. The only real question is how to make the best of a terrible situation?

In this particular case, for the uninitiated, Ethan Couch's case was tried in juvenile court, which is a civil not a criminal proceeding. The judge was specifically charged with rendering a verdict that's in the "best interest of the child." The goal of juvenile courts under Texas law isn't punishment in the same way adult criminal courts punish. Indeed, after the 2007 juvenile justice reforms following the TYC sex-abuse scandal, Texas youth prison populations plummeted.  The only kids sent to youth prison anymore in Texas are typically those who commit intentional acts of violence or mentally ill kids from communities with no treatment resources. For the most part, those reforms have been very positive and juvenile crime dropped after they were implemented. In this instance, the best interests of the child are also in the best interests of public safety and the taxpayers.

Finally, we are living in an era of rampant overcriminalization, but the criminal justice system cannot be the solution to every tragedy or social problem. This tragedy was caused by negligence and, for reasons Mark Bennett articulated, is fundamentally more tort than crime - the situation lacks mens rea, or criminal intent. The kid didn't set out that night aiming to kill anybody. And as a juvenile, in the scheme of things, he's a good candidate for rehabilitation. Bottom line: The judge followed the law and did nothing wrong. The kid's case was handled appropriately as far as the juvenile justice system goes. The place to seek retribution is in a lawsuit against the parents and after the defense offered in the boy's case, they'll be hard-pressed to escape liability. At the end of the day, that'll have to be good enough for the outrage machine.

43 comments:

Anonymous said...

I never stole beer or anything else when I was a teenager. I never drove drunk or impaired either. Further, I never killed or hurt anyone under any circumstances. All that said, rich puke or poor, the thing that bothers me is that he killed four people that night. He set out to steal, he made a conscious decision to drink and then drive so Bennet or no, he deserves a healthy kick in the teeth.

Nothing will bring the deceased back, I get that. Perhaps if the kid and his family are completely taken to the cleaners financially, it will give some closure, especially if the families of the four killed by the little shit use the money in a charitable fashion. I know personal responsibility is no longer the rage in society but the repeated claims that the kid didn't know any better or that it was merely bad "luck" as Mark dwells upon just fall short of the mark.

Harry Homeless said...

Well said.

Anonymous said...

A-fucking-men, 9:18!!

An Attorney said...

So all of the previous commenters are taken in by the media outrage machine and did not understand the point of Grits' column. Probation and rehabilitation are common results in criminal court for adult intoxication manslaughter cases. This case was a juvie case, which is NOT CRIMINAL! Therefore the choice is a civil commitment or probabion and rehabilitation. Given the circumstances, in terms of the long term well-being of society, that is the best outcome now. And believe you me, in the community that he lived in, of wealth and power, a lesson was being delivered to other families about their responsibilities to better raise their little rich brats.

And the civil lawsuit will be expensive and will get a lot of attention, and it will impact the other little rich brats and their families. The rehab facility will be better paid! Little expense to the public, etc., etc.

doran said...

Based upon what I have read, of what has been published about the juvenile, 9:18 will probably get his wish to see the juvenile locked up. If the kid is as lacking in self control as he has been painted, he will re-offend while on probation. If his new offense is truly heinous, the judge will put him in custody. If the kid has attained his adult ranking by then, he may do time in a prison and not in a juvenile facility.

Given the tragedy the juvenile caused, it is not difficult to understand the outrage of 9:18 and others who think the juvenile needs to be severely punished. He could have been, had he been tried in a criminal proceeding. Grits, or someone, are welcome to correct me on this, but he could have been certified to be tried as an adult in a criminal proceeding, rather than in a civil, juvenile proceeding. Perhaps he should have been, and justice may have been better served if he had been.

But should has nuthin' to do with it. He was a juvenile, tried in a civil proceeding, and blessed with a probated sentence. 9:18 and others just need to accept that reality, understand that our criminal and juvenile justice systems are not the same, and bide their time till this particular juvenile demonstrates either a capacity for growth or a continuing goal of self destruction.

Anonymous said...

Too Big To Fail.

Too Rich To Punish.

Anyone see a pattern here?

Good thing this judge wasn't a democrat or we'd have to listen to all the hateful comments about liberal judges.

Another story says the judge had already announced her intentions to retire after her current term. Pardon my cynicism, but is there a chance she was offered a job with the defense attorney's law firm? It wouldn't be the first time.

Rod Foglio said...

Some jail time should have been given to this kid so he can understand what is going to happen to him if he doesn't shape up. Now he'll go to a cushy rehab spa, which will not work, and someday he will kill again. The interview with the psychiatrist who is treating him showed that he is not being taught to take responsibility for his actions. The psychiatrist refused to acknowledge that the kid killed anybody.

Anonymous said...

If InWhatGrates On ME Is The Fact That A Child From A Poor Family In My State Would Have Been Prosecuted As An Adult And Would Have Received A Substantial Prison Sentence.

StageRt said...

I think I and many others were willing to listen to reason up until the time the Defense Attorney announced that the kid was 'losing his X-Box'.
At that point I STOPPED thinking and just went to 'mad as hell' mode - not a good thing.
Reading GRITS and Attorney, with time to get out of 'mah' mode, I understand where the judge was coming from as well as the nature of the court appearance.
doran stands a good chance of being right also. Look at George Zimmerman. 3 strikes and, so far, he's 'fouled off' the last 2 pitches.

Anonymous said...

He'll never do no ten years of probation. Once he turns 18 his attorney will petition the court for an early termination. In fact, since he's graduated high school already, if I were the attorney I'd already have the parents searching for a nice European university to enroll the kid in when he reaches 17. Then he'd be assured an early release.

The Homeless Cowboy said...

I am amazed that much of the state of what we call Journalism today is just pure Sensationalism, Muckraking, Conjecture, and Monday Morning Quarterbacking. Just as you pointed out there are multitudes of reasons why decisions are made, Our society seems to say "Let's see what happens, then we will pitch a bitch" It is easy to pick apart a juvenile court Judges decisions, without knowing the constraints and legalities of each situation. The same can be said for any other decision made by anybody. We have arrived at a point that if it isn't flammable, it's not news. TV news pundits are no more than highly paid mouthpieces for whoever pays the most and these big news organization are what allows us to have 20 school shootings a year because they beat it to death in the media until we just cant wait for the next emergency to pick apart and the perpetrators get to see their name in lights. Maybe we should discuss those things here in blogs and in print media so as not to make these people heroes to others of their ilk.

Gritsforbreakfast said...

9:18, glad to hear you never stole, never drove drunk and have led a blameless life. Since you are without sin I suppose you're justified in casting the first stone. But the reason juries often give even adults probation in intoxication manslaughter cases is that not everyone can say that and those who can't have that lingering "There but for the grace of God" sentiment hovering over their judgment, at least if they're not hypocrites.

Still, given the outrage being expressed over the verdict in every corner of the internet, not to mention the fact that Texas has the largest prison population in the country, I'm not sure how you can make the absurdist claim that, "personal responsibility is no longer the rage in society." Kind of a silly comment, really.

Anonymous said...

It's hard to argue against either side. This is just one of those *Holy Shit* moments that we are ever becoming most familiar with - because there is no easy answer.

It's kind of like proving I'm no robot when I can't see the damn writing on the wall!

Gadfly said...

This probably was the best decisoin the judge could have made. That said, how closely will Couch's 10 years of probation be monitored?

And, does it included required attendance at sobriety programs after he gets out of rehab? Given that anything beyond AA, as in "secular" alternatives to the 12 steps, is slim in Texas, and two other appellate courts have already ruled that on First Amendment grounds, that would be ... er, problematic at least. I'm Googling for the news stories to see if he has mandatory sobriety programs post-treatment or not.

At the same time, for people wanting to defend the judge's sentence ... would Couch not be on parole after he got out at 18 and therefore under the state's thumb anyway?

Finally, "A Lawyer" is right ... family of at least one of the four deceased is going to sue his parents big time.

Anonymous said...

Yeah, it must be nice to be perfect.Somehow, someway, I think this kid will learn about responsibility. I think I read it he was on Xanax. If that was legally prescribed there must be problems that we are unaware of.I wouldn't think this drug would be prescribed to teens without a strong basis. Am I wrong? Since the court pitched it back on the parents I was wondering if this opens them up for lawsuits?

Anonymous said...

All of you can take heart in that this wasn't a jury sentence. Texas juries probably wouldn't have been so accepting of affluenza. Especially, with four lifesize cardboard photos of the victims staring at them.

Anonymous said...

The fact is that if this youth was from anything but a rich family, he'd be on his way to a TYC facility as a sentenced offender.
I know people love to beat up on TYC...And that's not to say that the agency doesn't deserve it.
But what it seems that John Whitmire and Mike Ward don't seem to understand, either wilfully or otherwise, is that there are youth who actually benefit from a TYC commitment.
I know we don't like the idea of punishment, but for Mr. Bennett to suggest that a TYC commitment would only be about punishment is pretty short sighted on his part.
It's been suggested that this youth will be able to get off of probation once he turns 18....I would suggest that there's a substantial chance that this youth will violate probation long before then....He's already learned that he can get away with anything....He killed four people and is going to a posh rehab facility because dad can afford the half million dollar price tag. Using that rational, there is no reason to think that this youth won't screw up the sweetheart deal his family was able to get for him.
The real hope here should be that nobody else will have to get hurt or die in the process of it.

Tutt Esquire said...

I appreciate the Grits analysis of the "affluenza" tag. On the facts of the case, the sentence imposed may well have been the best decision. It is amazing the facility with which some judges, through draconian sentencing decisions, manage to make an already truly awful situation even worse.

steven said...

difficult to see the difference between adam lanza and ethan couch, both sick kids, both mass murderers;
Maybe if Lanza lived in Texas he wouldn' have had to kill himself.

Anonymous said...

Steven,
Couldn't disagree more. Adam Lanza had Aspergers....Ethan Couch had two sets a parents who didn't bother to teach him anything.
Not really the same thing.

Anonymous said...

I disagree with Couch's sentence but the Lanza comparison is asinine. Equating shooting up a school to DWI manslaughter is either stupid, trolling or both. You're kind of making Grits' point about outrage and hyperbole.

Anonymous said...

This is BS!!!! This is the third rich person I have seen in the last 4 years get probation, one being a child of a Judge; however, I have witness two poor people get between 15 and 20 years. All under the age of 23 years old. Don't tell me that money wasn't the reason. That is BS!!! Money talks!!!! All I heard in the poor peoples cases were think of the poor victims, in the rich people cases, it was think of the poor drunks. I was shocked when the former Fort Worth Police Office got the max of 20 years. Texas is not smart on crime but corrupt on crime. If you are rich, you never see prison, if you are poor you will never get out of the system and it will follow you to your grave. A poor person's debt will never be paid to society. This was total BS all the way around.

Napfrocurlzgirl said...
This comment has been removed by the author.
Napfrocurlzgirl said...

I was so disgusted by this case, I started a petition to have the judge removed from the bench. Please sign it and pass it around.
https://www.change.org/petitions/state-commission-on-judicial-conduct-remove-the-hon-jean-boyd-from-the-bench

Gritsforbreakfast said...

Guess what, Napfrocurtzgirl? You can't get a judge removed via internet petition. Welcome to the real world.

Anonymous said...

Say there 'Nappy' ol girl, considering the fact that 97% (give or take) of all criminal cases are disposed of via Plea Bargain, and while understanding that we aren't sure if that includes juvie cases or not, this is just another Plea Bargain. bidnessasusual.

Forget about the Financial Card being played and being pissed at the judge for a moment and consider finding out exactly who pulled the strings to get this placed in juvie and who approved it. Then and only then consider learning who has Stocks, Bonds and any vested interest in the Up Scale treatment center(s). Poof, these answers will allow you to focus where to aim your piss and vinegar at.

Petitions are reserved for shining lights on important topics and worthless if they don't have a real attainable goal. Don't give up the good fight, you just might find another way to shine a light on the need to reform the way criminals are treated due to their ages. Hopefully, you'll also get someone to take a look at reforming the part allowing one to change a plea to avoid the hammer, despite ones worth and the use of expert witnesses. All being problems worthy of petitioning that I'd sign on to.

Anonymous said...

Most adults convicted of Intoxication Manslaughter DON'T get probation. Your unsupported assertion to the contrary is inaccurate.

Anonymous said...

While I see the legalese points made by those thinking the sentence was proper, fair, or otherwise swell, I tend to agree that had the kid been from a poor or middle class family he would have been screwed. Until everyone gets the same break, outrage is an appropriate response to situations like this. I led a clean childhood too so maybe I'm flawed as Grits implied of the first commentator when it comes to judging such things.

Gritsforbreakfast said...

Outrage is fine 12:10, as long as you take it for what it is - an emotional response that clouds good judgment. I don't begrudge the families and their supporters their outrage, but it has no place in a judge's decisions.

The nation was outraged after 9/11, and that outrage let our leaders justify all sorts of things - unnecessary wars, Guantanamo Bay, tapping the phones of world leaders, etc. - that in retrospect were really bad ideas. Outrage is a natural reaction but it seldom leads to the best decisions.

A clean childhood doesn't make you "flawed," but it also doesn't necessarily make you wise. It's a big world out there and it's often important to be able to view it outside the parameters of one's own, narrow personal history.

Finally, while I agree with your point about non-rich kids getting the same treatment, the truth is, as noted in the post, Texas is sending FAR fewer youth of all backgrounds to TJJD these days, especially from the big urban counties. That's part of the context I think many people are missing.

@10:46, the DMN story linked in the post said 40% of adults in Dallas County get probation - I haven't seen statewide figures.

Lee said...

Grits, There is a totally separate system of justice in our courtrooms for the rich and poor. Would this kid have gotten such a good deal with a court appointed lawyer in the plea deal machine of Texas? When you can to purchase the best legal defense you will always get a better deal.

Those calling for blood and scalp in the wake of 4 deaths and many more injuries are right on for doing so. This kid committed negligent homicide during the course of another felony. A prosecutor wanting to try him as an adult could have gotten a possible capital case off of this prick.

Gritsforbreakfast said...

I don't disagree with your point about rich and poor, Lee, but it's absurd to think this would have been a capital case under any circumstance.

Gadfly said...

Grits, have you seen anything about post-treatment center conditions of probation, per my earlier comment about 12-step groups and First Amendment issues? (I'm not saying this kids' parents would sue, but I hope that someday, somebody court-ordered to AA realizes his or her rights, and does.)

Gritsforbreakfast said...

Gadfly, I haven't seen detail in the press about specific probation conditions beyond the treatment requirement.

Lee said...

Grits, True it might have been a slight exaggeration on the capital case per the age of the defendant but lawyers are magicians that can make anything possible.

Simon Haskell said...

His friend that was riding in the back is still in a coma...so not all rich kids get away with it.

Anonymous said...

Maybe they should have charged him with stealing beer. It might have been easier to prove, and likely would have carried a harsher sentence. After all, he wasn't drunk before he stole it. Or is there such an crime as "involuntary theft?"

Anonymous said...

I like the way you think!

Anonymous said...

Reasonable people can agree to disagree. Some may feel the facts of this situation warrant sympathy for the rich teenager and that the judge did right by society while many others, I suspect a large majority, believe he got off easy for all those conscious choices he made that led to the deaths of four innocents. Don't worry, we will express our outrage to our elected representatives to change things in the future so you'll have even more things to wring your hands over. ;)

Gritsforbreakfast said...

Not so much sympathy for the teenager, 8:24, but respect for the law and an understanding of the differences between juvenile and adult court. He did "get off easy," there's no doubt. The judge had discretion to punish more harshly. She also had a responsibility under the law to rule "in the best interests of the child." Blog commenters don't carry that burden.

Anonymous said...

I might go with this analysis if it weren't for this:
http://freakoutnation.com/2013/12/15/affluenza-judge-gave-14-year-old-black-kid-far-more-of-a-punishment-than-the-rich-white-kid/

He got what he got, not because he was underage but because his parents had the money to exploit that.

Sean Carter said...

just shows you how important having a quality lawyer on your side can be, I know when I faced some dire circumstances that Marshall Davis Brown Jr really was able to get justice served

Anonymous said...

How about the 14 yr old poor black kid who was sentenced to 4 yrs in a juvenile detention center for just being there when his friends committed a crime? Ethan Couch was handled lightly because of his background, and this sends a message to kids like him that it's ok to kill people. 4 people are DEAD because of this kid.

Gadfly said...

Grits, turns out same judge gave a different juvie a far stiffer sentence, a few years ago. Dunno whether you had heard about this or not: http://www.sfgate.com/news/texas/article/Sentences-vary-for-drunk-teens-who-kill-in-wrecks-5086238.php