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.