Affluenza As Liar’s Paradox

by John Holbo on December 16, 2013

I suppose you’ve heard that a kid got off by pleading ‘affluenza’. It just occurred to me it’s a Liar’s Paradox (and a travesty, of course.) The kid, through no fault of his own, falsely believed rich people can do stuff like this without suffering serious consequences. It turns out this false belief is true (hey, this is still America.) But obviously having a true belief is not going to keep you out of prison. (There’s no such thing as the sanity defense.) So he has to go to prison. So his belief is false, and he doesn’t have to go to prison. So his belief is true, etc., etc.

It’s kind of like the Paradox of the Court.

{ 148 comments }

1

Keith Edwards 12.16.13 at 7:37 am

I don’t know if it’s a liar’s paradox so much as a categorical error on the part of the justice system. Like good little Economic Calvinists, they* believe that rich=virtuous, so therefore he could not possibly have done something worth going to prison and ruining his life over. I mean its not like he’s poor or black!

* They,in this case is a certain subset of the lawyers and the microselected juror pool for this case.

2

oldster 12.16.13 at 9:10 am

“But obviously having a true belief is not going to keep you out of prison. “

No, but the underlying causes that make the belief true might keep you out of prison.

The law prohibits certain actions, and also excepts certain classes of agents from those prohibitions. It is illegal to give someone a drug of a certain class, unless you are a licensed MD.

If you are a licensed MD, acting within your license, then you will believe that you are a member of an exempt class. And your belief will be true! And you won’t go to prison for giving that drug, even if an ordinary citizen would go to prison.

What keeps the MD out of prison: their true belief? No; rather, what keeps them out of jail is the very thing that makes their true belief true: the existence of an exempt class and their membership in it.

So the kid belongs to an exempt class–sc. rich white people–and truly believes that he belongs to an exempt class. What keeps him out of prison? Not the true belief, but the underlying facts that make the belief true, sc. his membership in an exempt class.

Which means that this part of your antilogy does not go through:

“But obviously having a true belief is not going to keep you out of prison. (There’s no such thing as the sanity defense.) So he has to go to prison.”

Nope. His membership in an exempt class keeps him out of prison, and renders his belief true. So he does not have to go to prison.

That’s how the judge and jury saw it: he is white enough, and wealthy enough, that the law does not apply to him. They believed it, and he believed, and his belief was true! No paradox. No jail time.

And no justice in Texas. Four people dead.

3

Ben 12.16.13 at 9:35 am

There’s another way in which the argument in the post breaks down that’s similar to oldster’s basic reasoning but doesn’t have to go “outside” legal analysis by recognizing the kid is rich and white and so is going to get a light punishment.

It breaks down because the defense doesn’t rest on the kid’s belief being true or not. It rests on his being a kid, a minor.

The defense is basically “the law treats immature kids with poor judgement differently than the typical defendant; this kid is immature and has poor judgment in this specific fashion”. Not “this guy has this specific model of how reality works in his head and on that basis should have a lesser punishment”.

The defense wouldn’t fly for, say, a forty year old who drove drunk and killed some people. The judge wouldn’t accept it as a matter of law.

Which is not to comment on the actual merit of the defense in the case of minors, which is, of course, a hideous wretch of a thing in the current state of American political economy and legal practice.

The more interesting philosophical question, seems to me, is whether or not a defense which could be justified in a more equitable world should be recognized when it is obviously not justified in this one.

Another way of phrasing this: “is it just for some parts of the legal system to take into account the realities of its bias in other disparate parts and as a whole?”

Affluenza among rich white kids might be an actual thing. But so are, as cited in the linked Wikipedia page, the social structures which make poor black kids think dealing crack is an activity for which they don’t face any serious consequences.

In the abstract sense, a legal system that recognizes both would (or could) be just. But one which recognizes the former while not recognizing the latter is not and could not be just, right.

But then so in our actual world, what do you say to the kid in front of your court that has affluenza? “It would be justice to go easy on you, but the world we live in is unjust, so we have to give you an unjust ruling”?

Assuming you think affluenza is an actual thing. I need a lot more convincing.

4

John Holbo 12.16.13 at 10:03 am

“The more interesting philosophical question, seems to me, is whether or not a defense which could be justified in a more equitable world should be recognized when it is obviously not justified in this one.”

Yes, this is a good point.

Let’s say there’s a society in which the punishment for theft is death, unless you are star-bellied sneetch, in which case the punishment is 1 year in prison. Let’s say that 1 year in prison is the correct punishment for theft. Is this society better than a society in which everyone is punished with death for theft, because it gets the punishment right in half the cases (since half the population has stars down thar)? Half a loaf is better than none?

I think most of us would say no. But that doesn’t mean that we should work to get star-bellied thieves killed.

5

John Holbo 12.16.13 at 10:44 am

Just to be clear: the post isn’t serious about it being a paradox.

6

bob mcmanus 12.16.13 at 10:56 am

There’s no such thing as the sanity defense.

I prefer “There is no sanity clause.”

7

Ben 12.16.13 at 11:18 am

I have a harder and harder time noticing when someone’s being intellectually whimsical.

I need to, like, plow through John Hodgman’s books again to reset my circuits or something.

8

merian 12.16.13 at 11:26 am

I have read criminal lawyers and judges to be very uncomfortable when people write someone “got off” when in fact the person receives a suspended sentence or probation or (in other cases) community service, restitution etc. The kid, as far as I understand, remains convicted of a felony.

With family cataclysms and conferences I was unable to form an opinion about this particular case. In general, I tend to believe that with teenagers, a therapeutic approach and avoidance of prison sentences should prevail. Your “liar’s paradox” point still stands as it is unlikely a poor kid would have received such a considerate approach. This said, pace details of the case that would turn my opinion towards “prison should have been chosen”, I’m not sure I should be unhappy if a young offender receives what I consider to be an adequate treatment just because the majority of kids in his case would not be so lucky.

9

oldster 12.16.13 at 11:31 am

Ben, it’s not hard in the case of Holbo.
His original posts are always serious; his intellectual whimsy is only on display in the comments that claim that the original posts were not serious.

10

Steve Williams 12.16.13 at 12:26 pm

I’ll start to think that affluenza is a real thing when medical professionals come up with a name for it that isn’t a cheap pun.

11

yabonn 12.16.13 at 12:39 pm

Steve Williams @ 10
With the name and the thing, a part of me can’t help thinking it’s The Onion after all.

12

Mao Cheng Ji 12.16.13 at 1:13 pm

“I’ll start to think that affluenza is a real thing when…”

Well, since there is already a rehabilitation facility near Newport Beach, California that treats it for $450K/year, it has to be at least somewhat real.

13

bob mcmanus 12.16.13 at 1:32 pm

8:David Howell, Geographies of Identity in 19th Century Japan, current reading

The portrayal of the rituals as Ainu rather than Japanese in origin, despite the
fact that by the end of the eighteenth century their form owed more to
Japanese bureaucratic protocol than to Ainu tradition, represents an
effort by the Japanese to ground their domination of the Ainu in history
and the traditions of Ainu culture. In that sense, they were analogous to
the invented traditions found in contemporary societies, at least when
seen from the Japanese perspective.

1) There do need to be different norms for rich and poor. The rich need to be treated much worse, unfairly and unjustly maltreated.

2) OTOH, re the compassion of your comment, it would be interesting although maybe not so new, if the mechanisms of hegemony, the terms and norms and values of the ruling class were to flow upwards from the lower 80%. If the ideas of meritocracy and equal treatment and equal justice were not only used and abused by aristocrats, but were internalized yet still available for privilege and power, not even hypocritically. Like say the “flat tax.”

Wait. That’s Neoliberalism, in which the ruled classes create the terms and conditions of their own domination.

14

t.gracchus 12.16.13 at 1:36 pm

If sentenced to jail, the maximum time served would be 2 years (transition out of juvenile status means out of that system). 10 years supervision is not limited in that way.

15

Barry 12.16.13 at 1:53 pm

merian 12.16.13 at 11:26 am

“I have read criminal lawyers and judges to be very uncomfortable when people write someone “got off” when in fact the person receives a suspended sentence or probation or (in other cases) community service, restitution etc. The kid, as far as I understand, remains convicted of a felony. “

Go to your nearest medium security prison (let alone maximum security). Tell some of the inmates there, many of them doing many years in prison for far less serious offences that kid didn’t get off.

16

Z 12.16.13 at 2:19 pm

Well, since there is already a rehabilitation facility near Newport Beach, California that treats it for $450K/year, it has to be at least somewhat real.

Ha, but that’s a paradox on its own, for if you are in the position to pay $450K to cure yourself from affluenza, then surely you are suffering from it right now!

17

bianca steele 12.16.13 at 2:21 pm

I believe the correct use of oldster’s logic and Holbo’s @ 4 is: people (generally) can’t hand out the drug; therefore physicians can’t hand out the drug (sure they can but it’s wrong); but who’s going to treat people with medicine? we need the eggs; therefore, anyone can hand out the drug (or at least should believe they can, we’ll do something or other if things get out of hand).

18

MPAVictoria 12.16.13 at 2:24 pm

“Tell some of the inmates there, many of them doing many years in prison for far less serious offences that kid didn’t get off.”

But at the end of the day he is a kid. His brain is not fully developed and his punishment should reflect that shouldn’t it?

19

Belle Waring 12.16.13 at 2:26 pm

The judge was straight bought off, right? And they didn’t think it’d get out of their county? His dad’s big around there; I think the reason the kid was driving a 1 ton pickup was so he could feel like he was participating in the family business some attenuated shithead way, and–more importantly–lord it over every other senior in the HS parking lot that he had the biggest truck with the extended cab. 1 ton, Jesus. That’s why it killed everybody. The judge got bought. Occam’s, boys. When I was talking about my serious moral failing below in the Harry Potter thread some people were saying I was suggesting I approved of this judgment in principle. There’s no principled defense for this. What I meant was, I would approve of it in this case and it only, if it had been my brother. I would then not want there to have been national press attention either. Further my brother…fuck nevermind that. I knock wood elaborately (due to my superstition) he’s a grown man who drives, ha a 4WD Land Rover? Fuck, seems like too normal of a car. Do they make actual Jeeps anymore? If so that. He needs it for the icy roads of West Virginia, on which I hope he drives safely today.

20

Barry 12.16.13 at 2:34 pm

Ben 12.16.13 at 9:35 am

“It breaks down because the defense doesn’t rest on the kid’s belief being true or not. It rests on his being a kid, a minor.”

Google for the phrase ‘tried as an adult’. Also (too lazy to search and link), the original reports for this mentioned many other cases where juveniles were slammed very hard for things like this, or less so.

21

Billikin 12.16.13 at 2:48 pm

bob mcmanus: “There is no sanity clause.”

Yes, Virginia, there is a sanity clause, and it’s white.

22

oldster 12.16.13 at 2:48 pm

“The judge was straight bought off, right?”

Yeah, could be. But part of the point of a society based around ideologies (white supremacy, plutocracy) is that the pay-offs and paybacks don’t have to come in envelopes. They are more pervasive and more seamlessly integrated into life in the community.

23

Ronan(rf) 12.16.13 at 2:49 pm

Isn’t ‘affluenza’ (stupid term though it is)just another way of saying he came from a dysfunctional family environment. If you agree that leniency should be given to *children* who grew up without much guidance or emotional support, then the sentence isn’t completely inappropriate. (Leaving aside for a moment that the benefit probably wouldn’t be given to poorer kids and that his parents wealth might got him off – As a general rule wouldn’t it be better if the US justice system erred on the side of leniency? It doesn’t seem an unconscionable sentence in theory)

24

Billikin 12.16.13 at 2:53 pm

Steven Williams: “I’ll start to think that affluenza is a real thing when medical professionals come up with a name for it that isn’t a cheap pun.”

Well, in adults it is plainly a character disorder. How about Sociopathic Entitlement Disorder?

25

MPAVictoria 12.16.13 at 2:55 pm

“Google for the phrase ‘tried as an adult’. Also (too lazy to search and link), the original reports for this mentioned many other cases where juveniles were slammed very hard for things like this, or less so.”

But should they have been?

26

Stephenson-quoter-kun 12.16.13 at 3:44 pm

So, one of the things that people often say about systems of social discrimination (in this case, wealth and race seem to be relevant) is that we can’t necessarily blame the individuals who happen to be privileged by them. There is no strict assumption that all white people are racist, or that all men are patriarchalists (is that the word?), and to a certain extent they themselves are oppressed by the role society has given them; they certainly didn’t all choose it. The argument of this defendant seems to be exactly that – he has been mistreated by society’s failure to teach him responsibility for his actions, and it’s not his fault that he behaved as he did. He’s too young to have had time to consider how the world really works, to figure out that his own privilege doesn’t extend to the ability to kill people and make it all OK again afterwards.

On that basis, there is at least some ground for a lenient sentence. He may grow up and come to realise that he should not have done what he did, and internalise that principle enough to ensure that he does not do it again. From the point of view of society, that’s a good outcome! A better one would have been that he never killed those people in the first place, but it does not seem unreasonable to hope that he might still have a useful life ahead of him, in which he does more good than harm to the rest of society.

The problem seems to be that such understanding is only ever extended to people like him, where any criminal act is presumed to be a momentary lapse of reason, a deviation from the otherwise ‘normal’ path for children of the wealthy. A 16-year-old poor kid is unlikely to receive the same understanding – his crimes are likely to be taken as a sign of his criminal nature, with no presumption that he is likely to grow up a better man. So, on the one hand we have the argument that individuals should be viewed as just that – individuals who cannot be blamed for the circumstances of their birth and upbringing – and the reality that people very much are judged by those things. On that basis, I don’t find the sentence to be problematic nearly so much as the fact that such sentences are incredibly rare and, like so many things, unevenly distributed.

27

Zamfir 12.16.13 at 3:51 pm

In mathematical of reality, these kinds of loops typically have an equilibrium in between. If it’s a stable equilibrium, the situation can converge towards it. Boy is completely mad, gets off entirely. So he’s entirely correct and not mad, gets entire punishment. So he’s actually kind of mad, but entirely, because he did almost get away with it. Therefore, a reduction in punishment instead of freedom. Which reflects on mad he is, and so on ad infinitum.

Perhaps the asymptotically stable point for this kid is a month in a pony park. For other kids, another equilibrium.

28

CharleyCarp 12.16.13 at 4:05 pm

Belle, it’s more corrupt than that: they didn’t even have to pay the judge. All they had to do was convince her that there was a real chance to “save” this kid through expensive intensive treatment — which is all about wealth and class (and, affluenza smokescreen aside, may well be a reasonable proposition) — and that they had could afford it.

The real scandal here is in the second point: only rich kids get the second chance, because the second chance is expensive, and the state ain’t paying .

29

bianca steele 12.16.13 at 4:11 pm

I think though that I’d like to register my agreement with Ben re. the whimsy of this post. To find out what it’s about, I had to click through–obviously, Zamfir didn’t, and obviously should have before commenting. And honestly I don’t think this kid whatever he did deserves to have a Wikipedia page. Leave the hate pages to Facebook–ordinary people ought to be left alone in their obscurity and if someone with a public podium needs them to make apoint suitable modifications or abstractions should be taken.

30

Bruce Wilder 12.16.13 at 4:25 pm

Many of the comments follow the irony of the OP to the problem of social discrimination, when the problem may be one of scarce resources.

The kid is still a child, legally and morally, and not entirely responsible for his actions. And, it is not a diffuse “society” which failed to teach him moral responsibility, but his parents. The parents are, in effect, being fined a reported $450,000 a year, to finance an attempt at rehabilitation, an attempt to undo their bad parenting.

Evidently, the parents have that kind of cash, so this is a feasible option.

And, it’s only an attempt: it comes with a 10 year period of probation — so now, for this young man, any number of minor infractions common to people his age — even poor people — will land him in jail for an extended period.

Most young people growing up in America — roughly 50% — will grow up in or near poverty. Something like 20% will experience some time brushing up against the UN’s global poverty standard of $2 a day. There aren’t adequate resources to bring them up the first time, so, not surprisingly, there aren’t adequate resources to “rehabilitate” them. They are cheap goods, produced cheaply, and if it turns out badly, it is better to throw them away, and at least give the prison-industrial complex a chance to create jobs for the remainder.

There really are not enough resources for everyone. We have to choose who to throw away. It would be foolish to throw away the rare someone, for whom resources are available. If nothing else, think of the people at the rehabilitation clinic, who surely want the $450,000 a year, even if they are not successful. Do the prisons, which will will charge $50,000 a year to warehouse the miscreant, deserve him more?

31

Bruce Wilder 12.16.13 at 4:29 pm

bianca steele @ 29

Privacy is deader than the four people he killed. Give it a rest.

32

MPAVictoria 12.16.13 at 4:35 pm

“The real scandal here is in the second point: only rich kids get the second chance, because the second chance is expensive, and the state ain’t paying .”

You know what? I wish I had posted this.

33

adam.smith 12.16.13 at 4:43 pm

Let’s say that 1 year in prison is the correct punishment for theft. Is this society better than a society in which everyone is punished with death for theft, because it gets the punishment right in half the cases (since half the population has stars down thar)? Half a loaf is better than none?
I think most of us would say no.

But then we should protest the death penalty for the Sneetches without stars and not the one year in jail for the star-bellied ones, shouldn’t we? Or should people have been outraged by the lack of lynchings of white people in the Jim Crow South? Or the fact that men were allowed to vote before 1920?

34

jdkbrown 12.16.13 at 4:44 pm

“ordinary people ought to be left alone in their obscurity”

I agree. But killing four people is hardly ordinary.

35

Ronan(rf) 12.16.13 at 4:57 pm

“There really are not enough resources for everyone.”

But doesn’t the lack of resources argument also work in the opposite direction, ie locking someone up is expensive and generally leads to recidivism so more emphasis on reform would be more financially sustainable?
From what Ive read journalistically it seems some states in the US are moving away from imprisoning people (or at least switching to home imprisonment – or whatever the term – which obviously isn’t great, but….)

36

Zamfir 12.16.13 at 4:59 pm

@Bianca, could you expand some more on that? To me, this doesn’t feel like too much tragedy to be whimsical about, it’s just too far away for that. I basically think it’s OK to joke about most stuff in the newspaper, even when the news is a tragedy to those involved.

But I might definitely be wrong about that, and I am interested to hear where you would draw the lines.

37

adam.smith 12.16.13 at 5:02 pm

yeah, like Ronan I buy the general thrust of Bruce’s argument, but not the scarce resources part. I very much doubt that a less punitive criminal justice system would end up being more expensive. 50k/year buys you a fair amount of treatment.

38

Mao Cheng Ji 12.16.13 at 5:12 pm

Down with the prisons, viva reeducation camps.

39

bianca steele 12.16.13 at 5:31 pm

Bruce Wilder @ 31
I don’t see the point of spending my time entertaining myself by researching and deploring teen drunk drivers, who should be living in deserved obscurity, not as celebrities with Wikipedia pages. I don’t see the point of making a hobby of writing Wikipedia pages for people I don’t know, so other people can hate on them. If I was donating money to Wikipedia I wouldn’t be expecting that money to go to giving server space to that.

Zamfir,
Maybe you could expand on what you find puzzling about my comment. What I find oddly whimsical in this case is the disconnect between the content of the OP and the content of the linked article, and the disconnect between the idea that the OP isn’t endorsing rubbernecking because it doesn’t repeat the content of the linked article, yet is endorsing rubbernecking because everyone who reads the OP has to click on the linked article (or risk going off-topic).

40

TheSophist 12.16.13 at 5:42 pm

I am someone who spends quite a bit of time with teenagers from extremely wealthy families, and I have to say that my reaction wasn’t “yeah, I see how this (the ‘affluenza’ causing inability to understand consequences) could happen”, but rather “what utter horses*%t”. If nothing else, upper class American high schools hammer their kids with various safe driving messages in a way totally absent when I was in hs in the distant years of the Carter and Reagan administrations. Additionally (and accidentally) the college admissions process definitely teaches the perception that actions have consequences. Just last Friday I was consoling the daughter of a billionaire who had been rejected outright by the Ivy to which she had ED’d. She’s acutely aware of the fact that a string of C’s in 9th and 10th grade have consequences. (Sometimes this is perceptual only, as well-qualified folks get rejected, and tell themselves “if only I’d done/not done x, I would have got in.”)

Regarding the various discussions of what penalties should be, I have long held that we would get comprehensive immigration reform no more than one week after ICE sweeps through Paradise Valley (the most affluent Phoenix suburb) rounding up every housewife who has employed an undocumented maid/gardener, and taking them all off to Joe Arpaio’s tent city jail. There’s not going to be any substantial reform of the way that we look at juvenile crime for as long as the only lengthy prison sentences are handed down to “those people.”

41

Glen Tomkins 12.16.13 at 6:12 pm

The Golden Rule

No, not the one in the Gospels. That Golden Rule is for losers. I’m talking about the Golden Rule of Politics, that, “He who has the gold makes the rules.”. That’s the Golden Rule for winners.

The only innovation in this case is that normally those who have the gold settle for making the rules at the legislative level. To get vastly unequal outcomes at the level of the courts, they used to need to hire a legal dream team. This case just shows that they can actually get courts to rewrite the rules, they don’t have to have legal teams to help them pretend that fair rules are being followed when they’re not. More efficient that way, so everybody wins, right?

Marx’s great accomplishment in political science was his discovery of this Golden Rule. In his day, the official explanation for why the powerful were in charge was that they were noble. Yes, there were all those merchants and, more lately, industrialists, out there with their wealth. But the third estate supposedly didn’t run things, and the people who did run things were supposedly above petty concerns of mere m0ney, well, at least when they were ruling, making their decisions about governance. Of course that self-image didn’t correspond much to reality anymore. But it was the key justification for political inequality in Marx’s day. We’re all money grubbers down here at the bottom of the social order. Good thing that there are these wise and noble people up top to make the rules for us all. But if the great and powerful are no more than money-grubbers out for themselves, they don’t deserve to rule us all, they don’t deserve to make the rules.

It’s hard to appreciate today how much this promulgation of the Golden Rule struck home back in Marx’s day. Atheism per se, disbelief in God, is one thing, and a fairly abstract and non-threatening thing. But atheism about the nobility of the great and powerful, atheism about the source of their authority in governance, that’s getting real.

Today the fact of the Golden Rule is not at all a scandal. The wealthy don’t pretend to have any right to make the rules other than that they have been more successful at accumulating gold. But they most definitely assert their right to make the rules. These days we’re all atheists where it counts, political theology-wise. Well, unless you count Mammon as a god.

Marx needed the Golden Rule to make his economic mechanism move forward inexorably towards the end of capitalism. He needed the assumption that the capitalists would be able to remake the rules unfettered by any considerations aside from making the accumulation and concentration of wealth more easy. He needed to assume the Golden Rule in order to enable the remorseless advance of capital to the point of the universal immiseration that would lead to revolution.

For a while, with social democracy, we thought we had repealed the Golden Rule, and made a place for considerations of the common good to at least brake the influence of capital short of its total control over making the rules. But we were wrong. The Golden Rule is back in the saddle and back on track to its inevitable end.

Strange that it should come back to Croesus. Herodotus has him say that the circle, or cycle, dominates human affairs. Now we know that it’s money that dominates human affairs, despite what the guy who invented money told Herodotus.

42

Bloix 12.16.13 at 6:27 pm

Would you pay $450,000 a year to keep your teen-aged son from being gang-raped? That’s what these parents are doing.

From dallasvoice.com:

Welcome to Texas, prison rape capital of the U.S. …
A 2008 study from the Bureau of Justice Statistics found that 4.5 percent of all inmates in America report sexual assaults. The same study ranked five Texas prisons among the 10 U.S. prisons with the highest rates of inmate-reported sexual assaults.
In those five prisons, between 9 percent and 16 percent of all inmates report incidents of rape by fellow prisoners and prison staff…
According to Joanne Mariner of Human Rights Watch, prison rapists tend to target young, physically weak Caucasians — usually first-time, nonviolent offenders who seem kind, unaggressive, shy or intellectual….
TDCJ inmate Roderick Johnson, who’s openly gay, entered the Allred Unit near Wichita Falls in September 2000 on nonviolent charges of burglary, cocaine possession and cashing a bad check, according to multiple news reports about his case.
After Johnson’s arrival, he quickly came under the ownership of the Gangster Disciples, a prison gang that hadn’t had a sex slave for a while… Johnson spent the next 18 months being orally and anally raped in the cells, stairwells and showers of Allred prison every day by men he called “a pit of vipers” and “a pack of wolves,” the news reports say. ..
Rape survivors like Young and Johnson have to overcome several obstacles before they can even report an incident: They must survive the assault, then deal with the shock and disgust of violation without cleaning the evidence off their bodies by showering, brushing their teeth or drinking.
Often, fear of retaliation and shame will prevent survivors from immediately reporting attacks. And those who do don’t always have witnesses to help corroborate their tale.
They might also face a barrage of victim-blaming questions from prison officials such as, “How did you let that happen? Why did you go there in the first place? Why didn’t you tell anyone sooner?” — questions that imply they possibly deserved the assault and should feel ashamed, if they don’t already…
The American Civil Liberty Union’s National Prison Project eventually sued the TDCJ in April 2002 for violating Johnson’s constitutional rights protecting against cruel and unusual punishment and guaranteeing equal protection under the law, based on his race and sexual orientation. But in 2005, a jury dismissed the lawsuit…
Johnson now lives on parole in Austin, diagnosed with post-traumatic stress disorder, taking anti-depressants and facing nightmares and suicidal thoughts each day…
JDI’s McFarlane says it’s impossible to know how many prison assaults end in death, how many prisoners pass away due to complications from AIDS, other untreated STDs, and injuries and suicide — the mental and physical toll is enormous.

43

Chaz 12.16.13 at 6:31 pm

adam.smith, a treatment regime might in principle be cheaper, but the judges have access to free (paid for by the state) prisons, while they do not have access to publicly-funded beachfront rehab villas. They are only able to sentence a person to rehabilitative massage if private sources volunteer the funds. Kind of like when Colombia let Pablo Escobar build his own prison.

44

adam.smith 12.16.13 at 6:36 pm

Chaz – I understand the way the criminal justice system works and how it’s fucked up. But that’s not what Bruce talked about. He writes

There really are not enough resources for everyone. We have to choose who to throw away.

He’s making a statement about society as a whole, not about the perspective of an individual sentencing judge. That’s what I’m disputing. There are enough material resources to try to rehabilitate drug offenders. The lacking resource is political/societal will.

45

Hey Skipper 12.16.13 at 6:41 pm

I suppose you’ve heard that a kid got off by pleading ‘affluenza’. It just occurred to me it’s a Liar’s Paradox (and a travesty, of course.) The kid, through no fault of his own, falsely believed rich people can do stuff like this without suffering serious consequences. It turns out this false belief is true (hey, this is still America.)

Wrong. As a condition of his probation, he must go to a rehab facility that is going to cost his parents $450,000, and the conviction will stay on his record for 10 years.

The alternative would to have been tried as a juvenile. According to the NYT, “Criminal defense lawyers said it was not uncommon for minors involved in serious drunken-driving cases and other crimes to receive probation instead of prison time, even in a tough-on-crime region such as North Texas. Other experts said it was part of a growing trend of giving a young person a second chance through rehabilitation instead of trying him as an adult.”

So the real conclusion to draw is that hysterical reactions, such as yours, to a defense claim are irrelevant, since the likely sentence for a typical juvenile (probation, no record after 18th birthday) would have likely been far less than what this kid got.

The kid didn’t “get off” and his parents paid dearly.

Nice rant, but weak on the facts.

46

bob mcmanus 12.16.13 at 6:50 pm

40:He needed to assume the Golden Rule in order to enable the remorseless advance of capital to the point of the universal immiseration that would lead to revolution.

You are missing the part about how the proletariat gains ideological independence, gains freedom from the ruling ideas (which incidentally, are the dominant productive relationships expressed as ideas). Is the Revolution really inevitable? How is it possible?

German Ideology Section “Ruling ideas” at the bottom

b) Gramsci Athusser etc. GI is very early Marx, and earliest Marxism.

c) From the link.

“The class which has the means of material production at its disposal, has control at the same time over the means of mental production, so that thereby, generally speaking, the ideas of those who lack the means of mental production are subject to it.”

It is the contention of some of us, after the death of mass media and means of propaganda, that, to the extent the ruling class ever had the control of mental production, that age is over, and production of ruling ideas has become democratized.
Unfortunately, the producers (Us! here!) are not socialists or a revolutionary class.

47

bob mcmanus 12.16.13 at 7:02 pm

As I said above, the problem is not disparate treatment as ideology. We would like all kids to get treatment instead of twenty years.

This kid was not favored by aristocratic or privileged ideas or attitudes, but by egalitarian ideas and attitudes, which in this case were effective because he had the resources unavailable to the poor or underprivileged.

The problem is the goddamn money, which is protected not by ideas of privilege but by liberal democratic ideas.

48

Zamfir 12.16.13 at 7:05 pm

@Bianca, I am afraid I am not really getting your point. There’s something you apparently consider obvious, and it’s not obvious too me. There might be a cultural barrier here: for example, is it usual in the US that papers publish the names of the people involved like here?

49

Dr. Hilarius 12.16.13 at 7:21 pm

The discussion is dominated by the idea of rehabilitation but ignores the other goals of the criminal justice system, deterrence and punishment. There is no question that this kid “got away with it” by comparison with how similar cases are resolved. More severe punishment is meted out to juvenile drunk drivers in cases where nobody is dead.

The notion that kids are not responsible due to undeveloped brains is not one I find compelling based either on science or experience. It does dovetail with the desire of the well-to-do to overprotect and insulate their progeny from adverse consequences. But, if taken as true, it would seem to argue against allowing these immature brains to drive cars at all or engage in other risky behavior requiring impulse control.

50

Bruce Wilder 12.16.13 at 7:26 pm

if taken as true

! You have actually met teenagers? You were one?

51

MPAVictoria 12.16.13 at 7:30 pm

“The notion that kids are not responsible due to undeveloped brains is not one I find compelling based either on science or experience”

Have you ever actually met a teenager?

52

Bruce Wilder 12.16.13 at 7:31 pm

bob mcmanus: We would like all kids to get treatment instead of twenty years.

Would we? Are you sure? Because I’m not necessarily getting that from the discussion. Simple retribution, without hoary about the perpetrator being a victim, or the value of redemption, does have its fans. On bad days, I might even be one.

I think the bereaved families and friends of the deceased were expecting just retribution, and are disappointed that they didn’t get it.

53

Barry 12.16.13 at 7:36 pm

MPAVictoria 12.16.13 at 2:55 pm

Me: “Google for the phrase ‘tried as an adult’. Also (too lazy to search and link), the original reports for this mentioned many other cases where juveniles were slammed very hard for things like this, or less so.”

MPAVictoria “But should they have been?”

My point is that they are.

.

54

MPAVictoria 12.16.13 at 7:49 pm

“My point is that they are.”

And my question is should they be?

55

bianca steele 12.16.13 at 7:50 pm

Zamfir, There are a number of issues here. First, teenagers’ names are usually not publicized even when they commit crimes. Then, journalists have a privilege ordinary people do not, of publishing information when it’s in the public interest, even when the same information published by someone else would appear prurient. Further, even journalists have some standards, and try not to give too much publicity to people who aren’t public figures. If a journalist was writing a story about, say, the liar’s paradox, and used material from a real criminal case, especially one involving a minor, the journalist would make quite sure of not having named the real person involved. Then, Wikipedia isn’t a newspaper and blogs aren’t newspapers either; they aren’t covered by journalistic privilege (even if they often attempt to follow journalistic practices of fairness in order to prevent lawsuits). Do you know how many teenagers (and ftm adults) drive drunk and kill people every month in this country? Texas is thousands of miles from here, and it’s certainly not usual for juvenile drunk driving and shoplifting cases to be covered in entirely different states.

Further, making social media pages to harass real people, and commenting on social media pages to harass people one doesn’t know, is unfortunately a real thing. The linked article isn’t an anti-drunk driving site created by people who do other things than name and shame individuals. It’s a hobbyist drive-by on a site created by other people to do other things. And what this thread seems to me to mostly offer, is an opportunity to engage in schadenfreude.

Frankly, the coyness of the OP made me assume some embarrassment even to have to refer to the incident directly.

56

Glen Tomkins 12.16.13 at 7:53 pm

44:

I don’t think that possession of the technical means to distribute ideas has much bearing on what people believe. We’ve had writing for several millenia, and it’s been relatively cheap to produce and distribute these things called “books” for centuries. Even if the powers that be did have huge advantages in getting their ideas disseminated, under the Golden Rule, they will disseminate what sells. If Dickens and Upton Sinclair and Capra sell, the publishers and studios will fall all over themselves selling the rope that could be used to hang them. If such ideas no longer sell, if you have to go with action, or sex, or patriotism to sell to a mass audience, it certainly seems difficult to blame that on any counter-revolution in the media. You had people like Ayn Rand writing “counterrevolutionary” stuff, but that stuff never had wide appeal, never got translated into commercially successful books or movies. If Randian ideas have won, they’ve done so somewhere off the field of the media. They won because they appeal to rich idiots who never actually read Rand, or rich idiot wannabes, and most people these days think that being rich means you can’t really be an idiot, you must be so smart that it’s only natural that the rules should be written to make it easier for you to go about your job-creating work.

People are not going to be ready in any numbers for salutary counter-messages until they at least stop believing that the Golden Rule is inevitable, if not the just order of things. Until then, even media not in direct control of the power that be will still glorify at least the ruling ideas, if not the powers that be personally, or they will fail to achieve success.

People aren’t going to stop believing in the Golden Rule until it fails. Maybe you can help people perceive the failure earlier by writing books and making films or Youtubes. We all hope that people will understand the failure of capitalism before we hit bottom and have a violent revolution. Maybe we will draw back from the brink, as we did a century ago with social democracy. And maybe Dickens and Sinclair were important in getting us to draw back from the abyss. I just don’t see that media availability has much to do with it. Produce a compelling novel or movie if you want to chip away at the Golden Rule before it completely self-destructs and takes us all with it, but don’t rely on the availability of new media modalities to do the job without works of great power informed by the real-world failure of the Golden Rule. And if you can create such works, you won’t have to go guerrilla to get them disseminated. The capitalists will gladly sell the rope in the mass media as long as there’s a margin in it for them.

57

Rusty Shackleford 12.16.13 at 8:03 pm

From following the case, it was clear that “affluenza” was not a medical or psychological diagnosis, but merely a (poorly chose) term to describe only a small part of this kid’s deeper psychological and emotional issues. From the testimony at trial, it was clear that this kid was the subject of psychological and emotional neglect from his parents, if not out right abuse. This neglect/abuse extends beyond any type of “affluenza” and gets to the fact that while this kid may have been alive for 16 years, he was more of the emotional or psychological equivalent of a 11 or 12 year old. This was the main thrust of the defense. The defense was NOT centered around “affluenza,” but that is what made all the headlines.

If the kid was psychologically and emotionally stunted by his deplorable parents, and the defense offered evidence that he was which the prosecution was unable to rebut, does that change what “should” have happened? “Shouldn’t” rehab or some type of it be the appropriate outcome for someone who is both a minor and suffering from psychological damage?

Money clearly was in play here, as wealthier individuals are going to be able to mount a better defense through better lawyers and psychologists, etc. But that doesn’t change the facts surrounding this kid’s very very troubled upbringing. No one class or group of people has a monopoly on bad parenting and I think our legal system as a whole needs to do a better job of investigating this for all defendants, not only those who can afford to pay for it themselves.

(Also, that $450k a year facility stuff is crap…that is where the defense recommended he be sent, but the final decision is up to the judge and the state probation office. Nothing has been decided yet.)

58

Barry 12.16.13 at 8:06 pm

MPAVictoria 12.16.13 at 7:49 pm

“My point is that they are.”

“And my question is should they be?”

I know I am but what are you?

59

Bruce Wilder 12.16.13 at 8:07 pm

Ronan(rf) @ 34: doesn’t the lack of resources argument also work in the opposite direction, ie locking someone up is expensive and generally leads to recidivism so more emphasis on reform would be more financially sustainable?

It might, except for the point bob mcmanus @45 has made. It is the combination of egalitarian ideas and the ridiculously skewed distribution of income/wealth/scarcity, which drives policy, not ideas about what general policy would be effective in an abstract sense. This family, apparently, has $450,000 a year to spare, and the “market economy” has organized the production of a “treatment” option that costs that much.

Think about how this goes in a completely different context, say “entitlement reform”. A very serious fellow intones about how “we” cannot “afford” Social Security or “Medicare”, and it is necessary to enact “tough” choices, to solve the problem of burgeoning public debt, which is threatening “everyone’s” future, etc. That’s not a discussion about how we deal with poverty among the elderly in an aging society; that’s a discussion about we keep intact a general trend toward greater inequality in the distribution of income and wealth. Pensions have been eliminated to make billionaires richer, and health care costs twice as much in the U.S. because charging twice as much makes a lot of powerful people rich.

You cannot separate the distribution of income and wealth from the distribution of income and wealth, by abstractly positing a paternalistic, technocratic state, considering the problem of drunk teenagers, who own giant trucks, (as if any poor teenagers own giant trucks and this is problem unrelated to wealth and income), or no one profits from the highest rate of adult incarceration in the world, or a high rate of incarceration isn’t absolutely necessary to bring about a distribution of income, which leaves a significant number of people with almost no resources at all.

Our ideas about this — and we may deceive ourselves, if we believe we can “think” ourselves to a better world, as mattski has observed — are shaped in response to our own unwillingness to face the nature of the constraints. If we think it is unjust that this family has $450,000 to spare, we should say so. And, if we think the state should be authoritarian, arbitrary and cruel in all cases whatsoever, well . . . But, we shouldn’t kid ourselves that the money that the wealthy have in abundance isn’t extracted from the less powerful and doesn’t involve imposing scarcity, or that authoritarian attitudes and policies aren’t a means to that end.

60

Substance McGravitas 12.16.13 at 8:19 pm

What criminal is more lauded than the jewel thief?

61

MPAVictoria 12.16.13 at 8:21 pm

“I know I am but what are you?”
A social democrat and a union member. Also confused by your posts.

62

Trader Joe 12.16.13 at 9:06 pm

How nice to imagine the wonder of a world where money and power have no influence and cases are decided solely on the basis of what’s “right” for the victims and “best” for the defendant.

Does someone know someplace or some period of time where such a justice code was in operation or is this whole discussion just as hypothetical as the Paradox of the Court?

Any defendant has at most two resources – time and money. Why wouldn’t a person with the later try to use it. Inevitably the family will also compensate the victims and I’ll cynically imagine that at the moment the check clears the victim’s families will be just a little less outraged about whether justice is served white or green.

63

Ed Herdman 12.16.13 at 9:21 pm

@ Z #16:

If you’re just suffering from borderline affluenza, the $450K fee might correct it with certainty! And a misdiagnosis in this case would just force you to the zero lower bound.

64

phosphorious 12.16.13 at 9:22 pm

“Any defendant has at most two resources – time and money. “

And, apparently, the deference to wealth. There’s the fact that wealth can buy you a better defense. . . but then there’s the fact that the system favors the wealthy, which is completely different.

Your world weary cynicism is more annoying than you realize.

65

GiT 12.16.13 at 10:06 pm

On deprivation of privilege in pursuit of equality:

“Suppose you are the mayor of a small town in a southern state in the United States. Your town has one swimming pool and no funds to build another one. The state legislature passes a law on the racial segregation of swimming pools. You are opposed to racial segregation, so you close the town pool. No one is any better off as a result and the white population is worse off, but it was nevertheless the right thing to do. Wolff argues that this is indeed an example of levelling down, and that levelling down may sometimes be reasonable on account of the symbolic importance of the issue.”

“Cases of this kind are actually very common, and it is easy to see how they might eventually switch from levelling out to negative community. For example, suppose that you are planning a large and expensive birthday lunch with some close friends. You then think of a couple more people you really want to invite, and so realize everyone will have to have smaller portions. The extra people all ask if they can bring a friend, and you decide you will have to change the menu. Then it dawns on you that with so many people coming, many others will be aware that you are having the party and may feel excluded. You decide to invite anyone who wants to come, and put up a notice: ‘It’s my birthday. Join the celebration.’ Realizing there might not be enough to go round, you add a PS: ‘please bring and share a bag lunch’.”

Doling out punishments is a bit different from rewards, but nonetheless…

http://newleftreview.org/II/70/malcolm-bull-levelling-out

66

Chris Mealy 12.16.13 at 10:16 pm

The big problem here is the presumption of automobility. In America, as long as you’re sober, you can murder anybody with a car and not go to jail. In NYC you won’t even get a ticket. If people shouldn’t be held responsible for murdering people with cars because they’re too young or too old, or being driving is hard and accidents happen, then the obvious thing is to get rid of cars, or at least sharply restrict who gets to drive.

67

alex 12.16.13 at 10:17 pm

“I don’t see the point of spending my time entertaining myself by researching and deploring teen drunk drivers, who should be living in deserved obscurity, not as celebrities with Wikipedia pages.”

The point is the guy is on probation for killing 4 people while drunk. It’s great that people know what the bastard’s done because if they see him breaking the terms of his probation they can tell the police and get him put in jail.

“We would like all kids to get treatment instead of twenty years.”

Which treatment? There isn’t much evidence any of it works. The relapse rate for alcholism after entering “treatment” is what, 80-90%? On the basis of recidivism prison is absolutely fantastic for addiction based crime. It’s just very profitable bullshit.

68

GiT 12.16.13 at 10:50 pm

There are alternatives to imprisonment:

http://www.rand.org/health/feature/24-7.html

69

MPAVictoria 12.16.13 at 11:00 pm

“then the obvious thing is to get rid of cars, or at least sharply restrict who gets to drive.”

Spoken like a person who has only ever lived in a big city.

70

roy belmont 12.16.13 at 11:55 pm

Bloix at 6:27 pm:
Yes. The feral realities of incarceration, the soul damage, the complete transformation of personality in exactly the opposite direction from the supposed intent. It isn’t just rape, it’s all the power dynamics of prison. Rape’s the creepiest for the distant uninformed and unaware.
But then why should rich parents be able to buy their kids out of that?
Democracy Now! had a clip from Anderson Cooper, itself a cultural anomaly, where Cooper contrasted the affluenzic kid with a black 14 yr old who punched someone who then fell and as a consequence of falling died. Same judge. She wanted to send him to rehabilitation something somewhere but no program would take him (got to keep those success rates up for the cash flow!). He got 10 years inside.
Showed no remorse is part of the rationale.
But isn’t remorse itself a kind of luxury, a by-product of the freedom of wealth?
-
The UK Daily Mail which I only got to because of my search engine had this at the end of its article on the judge, the victims, and the case:
Breanna’s mother, Marla Mitchell, said she was ‘mad’ about the sentence and embraced the families of the other victims outside of the courtroom.
‘He’ll be feeling the hand of God, definitely,’ she told WFAA.com. ‘He may think he got away with something, but he hasn’t gotten away with anything.’

So…we could just shut down the entire legal system, and let God run some hands-on justice for us?
Or…not give people with bizarre ideas like that a voice in what meagre justice we do have?
There’s a reason the statue of Justice is wearing a blindfold, right?
That 14 yr old was already in the prison of being poor and uneducated and black.
The drunk-driving rich kid’s birth certificate had a get-out-of-jail-free card embossed on it, from the get.

71

William Timberman 12.16.13 at 11:55 pm

Equal Justice Under Law seemed like a fine idea in 1932, I guess, but it’s hard to imagine that there wasn’t some especially cynical snickering at the time outside the circle of those who had it chiseled on the front portico of the Supreme Court building. I doubt anyone cared. Even to cynics, civic pride does cry out for bit of pacifying, if not always honest sentiment in the decorative embellishment of courthouses.

I remember passing the Grady County courthouse in Chickasha, Oklahoma late one night many years ago — a drunk teenager, as it happened, in a car full of drunk teenagers. The spotlit inscription high up on the building read: The Safety Of The State Is The Highest Law. I giggled, pointed, and wondered out loud whether the county bigwigs were quoting Mussolini or Stalin.

Justinian, it turned out much later, but in any case it seems to me today that the Grady County inscription represents a more candid sentiment than the one engraved on the Supreme Court. Concerned parents with $450K to spend on their wayward son can probably make a lot more trouble for officialdom than the grieving family members of the victims.

72

Chris Mealy 12.17.13 at 12:13 am

“Spoken like a person who has only ever lived in a big city.”

Nope, grew up in the sticks, but now urban by choice. You know, people lived in villages and towns long before there were cars. And cars are more dangerous to rural and suburban people than they are to city folk. That’s the main reason cities are the safest place to be.

73

godoggo 12.17.13 at 12:14 am

A thought just occurred to me: remember the Twinky defense? Why couldn’t something equivalent be applied to alcohol?

And yes, the system is unfair.

74

godoggo 12.17.13 at 12:16 am

btw, I originally spelled defence with a c and got a red underline, so I “fixed” it. I think you’ve got some fawlty software.

75

MPAVictoria 12.17.13 at 12:33 am

“Nope, grew up in the sticks, but now urban by choice. You know, people lived in villages and towns long before there were cars. “

Sure. People also used to go without running water and penicillin. Doesn’t make it a great idea.

76

Royton De'Ath 12.17.13 at 12:49 am

Quite some problems traversed in this thread. Answers? Solutions? (i.e. solutions that maintain the Natural Order of Things. Of course.)

I shall now therefore humbly propose my own thoughts, which I hope will not be liable to the least objection.

I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricasie, or a ragoust.

I do therefore humbly offer it to publick consideration, that of the hundred and twenty thousand children, already computed, twenty thousand may be reserved for breed, whereof only one fourth part to be males; which is more than we allow to sheep, black cattle, or swine, and my reason is, that these children are seldom the fruits of marriage, a circumstance not much regarded by our savages, therefore, one male will be sufficient to serve four females. That the remaining hundred thousand may, at a year old, be offered in sale to the persons of quality and fortune, through the kingdom, always advising the mother to let them suck plentifully in the last month, so as to render them plump, and fat for a good table. A child will make two dishes at an entertainment for friends, and when the family dines alone, the fore or hind quarter will make a reasonable dish, and seasoned with a little pepper or salt, will be very good boiled on the fourth day, especially in winter.

Swift, J., 1729. For preventing the children of poor people … etc. etc

77

Chris Mealy 12.17.13 at 12:50 am

“Sure. People also used to go without running water and penicillin. Doesn’t make it a great idea.”

Oh good lord, you’re forcing me to be pedantic. Running water and penicillin are nice things. Cars are killing machines and have all kinds of other bad social effects (pollution, obesity, reduced mobility to young, old, and disabled, expensive, etc). How else is a drunk teenager going to kill four people? With a bicycle? With running water?

78

Main Street Muse 12.17.13 at 12:50 am

All I know is I would hate to be family to those killed by this very spoiled, very rich baby.

79

MPAVictoria 12.17.13 at 1:12 am

“Cars are killing machines”

Oh please.

80

Substance McGravitas 12.17.13 at 1:50 am

I’ll take a killing machine too please.

81

Consumatopia 12.17.13 at 2:00 am

I live in the sticks and depend on a car, but it’s still obviously crazy that we give driver’s licenses to people who we’d expect to try in court as a juvenile. If you don’t have an adult’s responsibility, we shouldn’t trust you with dangerous machinery. Conversely, no licensed driver should be tried as a juvenile.

A licensed driver committing an automobile crime could still claim that they were incompetent or insane (affluenza or otherwise)–that they shouldn’t have had a license to begin with. But they should have to make that plea as an adult.

And of course a child who drives a car unlicensed would still be a juvenile.

Also, I don’t have a problem at all with retribution as a motivation. Retribution lets the victims or their families know that the punishing community takes their suffering seriously–that the community considers those victims to be fully recognized members. A rich person getting away with a crime because they’re rich–if that’s what happened here–throws that recognition into doubt.

82

Lawrence Stuart 12.17.13 at 2:08 am

Sure, some form of ‘treatment’ is going to beat incarceration. But is it really necessary to upend capitalism to make it available to all? As was pointed out upthread, the 50K annual cost of the Big House could provide a lot of therapy. It seems to me that the decision to incarcerate rather than treat is a function of policy, not a function of capitalism. Which is good, because policy should be a lot easier to change.

But beyond the question of the availability of treatment, I’m thinking that some form of restitution is a good thing. Throwing any kid (or adults for that matter) in jail is not perhaps the best thing for them. But what about what’s good for the victims of crime? I’m not talking about petty property crimes … but crimes that involve violence, pain, and death. If it were my kin this kid had killed, I’d be ready to pop seeing him walk away from that act without seeing him hurt, and hurt deeply. Not physically (though I’m sure that urge would be there). But at the very least I’d demand that he see and acknowledge my pain, and I don’t mean in a facile or offhand way. I’d want that little shit to have to face me until I broke him, until he was ready to genuinely and sincerely ask for my forgiveness. Forgiveness I might never be able to give.

The halfway point between therapeutic and retributive urges is some kind of restorative justice model. Up north here there were some experiments with sentencing circles in aboriginal communities (the incarceration rates for aboriginal men, in particular, are shamefully high). In lieu of incarceration, those convicted could choose to be sentenced by a community group. These things most often involved bringing victims and perpetrators of crime together in the search for some kind of resolution. It seems to me that a case like this cries out for this kind of approach.

83

stubydoo 12.17.13 at 2:18 am

If the idea that he was too young to truly bear full responsibility really carried as much weight as some folks seem to think, then the education system has one hell of a mess on its hands. All that moralizing that we do with 8 years must be nothing but hot air if a 16 year old can’t be expected to be morally responsible.

Your past 16 year old self would soooooo not be on board with the necessary constraints of freedom implied by your views about responsibility for actions, and would find the consequent life abjectly miserable.

Count me fully on board for always trying as an adult for vehicular crimes for all teenagers old enough to receive a license.

84

adam.smith 12.17.13 at 4:06 am

“From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” Justice Anthony M. Kennedy wrote in the opinion for the court.

I’m kind of shocked by the degree to which presumably left-leaning people commenting here are less cognizant of the rationale for juvenile justice system than Justice Kennedy. Well, I guess mass incarceration and school-to-prison pipelines are working nicely for the US… AFAIK, no other Western country even allows trying 16 year olds as adults and in no other Western country would a 20 year prison term even be considered for a minor. Some of the posts here are terribly depressing.
As per merian @8 – the kid didn’t “get away” with anything. He got a lighter sentence than the prosecution wanted. He got convicted of a felony, which even for a rich kid means losing a lot of rights and opportunities (including basic rights such as the right to vote). That also means he admitted fault, which means he and his family are liable for civil damages (as they should be). And he has extensive probation restrictions and requirements.

Criminal defense lawyers said it was not uncommon for minors involved in serious drunken-driving cases and other crimes to receive probation instead of prison time, even in a tough-on-crime region such as North Texas.

http://www.nytimes.com/2013/12/14/us/teenagers-sentence-in-fatal-drunken-driving-case-stirs-affluenza-debate.html?_r=0

(I do think the political argument that nothing’s going to change if it doesn’t affect the privileged – e.g. Sophist @39 – is a very valid point. But if you follow recent trends like schools moving away from zero tolerance, awareness of such things as the school to prison pipeline etc. – things are already changing, albeit very gradually. People calling for blood/prisontime in cases such as these make such change harder)

85

roger gathman 12.17.13 at 4:44 am

I’m surprised that there is no going into the past record of Judge Jean Boyd and her record of mercy. For instance, in the case of this thirteen year old boy, who was in and out of mental health facilities and who killed a five year old with a bowling ball.
In this case, the thirteen year old – who I am boldly reading between the lines and declaring poor and probably black – was, alas, outside of the circle of mercy. 26 year in prison for him. But Judge Jean Boyd is no monster! I love this quote from the article:

The teen will initially be sentenced to a juvenile facility but could be transferred, with the court’s approval, to an adult prison after his 16th birthday.

The teen is small in stature and baby-faced, so his chances in adult prison are simply not good, said his attorney, Brian Willett.

“Everyone knows what happens, and the stories are true,” Willett said. “He’s a small little boy.”

A small little poor boy, one must add, who would probably not respond to the therapy involved in going to the beach, riding horses, and having chats with groovy and sympathetic counselors, like Ethan Couch. Which is why he gets the twenty six years. After which he can be arrested again for the next crime he commits, as he surely will: good for the cops, good for the private penitentiary companies. Who says there are no more win wins in America?
http://www.star-telegram.com/2013/11/06/5311582/fort-worth-teen-gets-23-years.html?rh=1

86

Chris Mealy 12.17.13 at 5:53 am

In America cars have killed 3.5 million people, compared to 1.3 million in all wars. Cars kill more Americans annually than guns do, about 35,000 to 30,000.

87

roy belmont 12.17.13 at 6:05 am

MPAVictoria-
“Cars are killing machines”
Oh please.

From some web site back in 2003:

Motor vehicle deaths [US] among children younger than 13:
(this may not display correctly)

Male Female Total
1975 2,275 1,368 3,643

2000 1,071 817 1,888
2001 996 755 1,751
2002 935 673 1,610
-
Really lowball on that would be around 60K children sacrificed to the highway in the years covered.
Good news though!
Insurance Institute for Highway Safety stats:
“The number of people killed in motor vehicle crashes has been falling. The 2011 toll was the lowest recorded since 1949, when 30,246 crash deaths occurred.”

I’ve come to revulsion around numerical forms of judgment about human lives lost. But, you know, people get upset about Sandy Hook, and rightfully so, yet walk right by
how many thousands of kids have died on the highway in their own lifetimes.
There’s nothing you can do about it, so pretend it’s not there. But it’s the people who didn’t pretend who got something done about it.

88

godoggo 12.17.13 at 6:16 am

“In America cars have killed 3.5 million people, compared to 1.3 million in all wars.”

It’s good to remember the small numbers of Americans that get killed in wars relative to non-Americans. Not to trivialize car deaths, but that particular comparison always irritates me.

89

Bruce Wilder 12.17.13 at 7:56 am

Cars kill more Americans annually than guns do, about 35,000 to 30,000.

Not actually true. With the falling rate of auto fatalities and the rising rate of suicide, guns, apparently, top the charts, now. Or did in 2011, at least.

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Mao Cheng Ji 12.17.13 at 8:16 am

I’m not so sure judges need to be bribed (although it certainly wouldn’t hurt). In stalinist terms some lawbreakers were categorized as ‘socially close’, and the others as ‘socially alien’ (enemies of the People). I believe something like that may be at work here as well, which also explains the ‘country club prisons’. I bet a Mob boss convicted for tax evasion doesn’t get to go to one of those.

In one case the judge sees an essentially decent kid who made a mistake and deserves another chance. And in another case he might see an enemy of everything we hold dear, enemy of the People. So, perhaps in this particular case they, in fact, neglected to bribe the judge and he retaliated by this very expensive sentence with the 10-year probation.

91

Suzanne 12.17.13 at 8:31 am

Some of the “children” who were with Ethan Couch tried to get him to act responsibly:

http://www.dallasnews.com/news/crime/headlines/20131212-attorney-defends-probation-for-teen-whose-dwi-crash-killed-4-in-burleson.ece

Judge Boyd also appears to have no special compunction about sending minors to prison. I have read that she sent a 14-year old black kid to ten years after killing someone with a punch. (The “child” in that case – a more appropriate usage for a 14 year old than a 16 year old, surely – was tried as a juvenile.)

Couch’s parents have had their own brushes with the law and don’t seem to be role models, to put it mildly. I can easily believe all was not well at home. Certainly I wouldn’t want to see Couch put away for fourteen years. Still, four people are dead. It seems…disproportionate. Couch’s reactions as reported at the scene don’t sound terribly shocked or contrite (“I’m Ethan Couch. I’ll get you out of this.”) Perhaps his cushy rehab destination will inculcate something of the kind. Time, I suppose, will tell.

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Tim Wilkinson 12.17.13 at 1:28 pm

The idea ‘just because we don’t usually do the right thing doesn’t mean we shouldn’t do it in some cases’ was of course a favourite of neocons in relation to selectively starting wars, but is of course repudiated with extreme prejudice when the issue is a boycott of Israeli universities, or other supposed examples of ‘singling out’ Israel. Not that I’m commenting on the substantive merits of either approach.

But in the context of penal law, which is for good reason supposed to be governed by procedure and to be applied even-handedly, there is a fairly obvious reason to be concerned about equal treatment ‘for its own sake’, whether that involves levelling up or down or somewhere in between.

There is also a political aspect.

Obviously part of the immediate cause of this kind of disparity is, as so often, unequal access to high-quality legal counsel. Another is the predictably skewed application of judicial discretion in favour of well-spoken white kids in suit and tie. Another may, for all I know, be bribery – though the only recent US cases in which I’ve hear of that being established related to especially harsh treatment being doled out to the underprivileged so as to enrich the ownes of private prisons.

So long as such sources of special treatment are available to the rich and privileged, along with things like unevenly-applied police and prosecutorial discretion, there will be no incentive for them to support fairer and less brutal treatment for criminal defendants in general. (This is a pretty standard political argument, and some of us would apply it also to to private education and private medicine.)

Unequal access to counsel is easily dealt with (technically easy, that is) – e.g., everyone gets a randomly-assigned lawyer paid from public funds. That would certainly focus the attention of the rich a bit – at least in the case of general procedural provisions, and criminal laws they or their kids might fall foul of. (Laws directed de facto only against muslims fitted up by the FBI, or users of ‘ghetto’ cocaine, or protestors, or the poverty-stricken could still be ignored, of course.)

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Tim Wilkinson 12.17.13 at 1:31 pm

Also, I’m amazed at eth ability of drivers to dismiss car fatalities as unimportant. Of course if you’re at eth upper range of the high-rider bull-bar arms race and don;t do things like trying to cross busy roads much, you probably don’t have too much to worry about, not like us softbodies.

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parse 12.17.13 at 2:24 pm

Go to your nearest medium security prison (let alone maximum security). Tell some of the inmates there, many of them doing many years in prison for far less serious offences that kid didn’t get off.

I spent four years in a medium security prison. Lots of the inmates there called a sentence of extended probation for a first felony offense a “trap off,” designed to allow the state to slam the offender when he violated probation with a much harsher sentence that he would have received if he’d been incarcerated for the original offense.

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Barry 12.17.13 at 3:44 pm

Tim Wilkinson:

“So long as such sources of special treatment are available to the rich and privileged, along with things like unevenly-applied police and prosecutorial discretion, there will be no incentive for them to support fairer and less brutal treatment for criminal defendants in general. (This is a pretty standard political argument, and some of us would apply it also to to private education and private medicine.) “

The whole point of the original article, summarized in one sentence.

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sanbikinoraion 12.17.13 at 4:01 pm

I am with those saying “if you can’t take responsibility for your actions, your actions should not be allowed to include driving”.

And to those saying that you can’t get around in rural areas without a car, remember that we’re talking about *kids* getting around in rural areas without a car. Which, up until they had a car, they could do by dint of a responsible adult taking them places. Certainly, if you can splash $450k a year on rehab you can afford to let your kid order a few taxis now and then.

At any rate, it’ll all be immaterial in 20 years, when only loonies will drive cars themselves.

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MPAVictoria 12.17.13 at 4:40 pm

“At any rate, it’ll all be immaterial in 20 years, when only loonies will drive cars themselves.”

You are probably right and I am dreading it. I enjoy driving and I will miss it when I am not allowed to do it anymore. It will save a bunch of lives though.

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subdoxastic 12.17.13 at 4:52 pm

@ Lawrence Stuart

Re: sentencing circles, and community based restorative justice programs for offenders.

I support the idea in theory but have recently come across a few publications that have me questioning my support. I’m away from my home library but will try to post the sources later.

In brief, community based sentencing or restorative justice models can fall prey to the social dynamics of the community with offenders from priveleged families receiving greater leniency in their sentences. So much like the Texas case in the OP both systems can demonstrate similar failures.

Such an approach has also proved particularly problematic for women victims of physical and sexual assaults, with many anecdotes from victims of violence stating that they would have preferred the more standard ‘western’ version of justice, where men convicted of such crimes face harsher penalties and where female victims of violence don’t feel pressured by the community to forgive their attacker.

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Chatham 12.17.13 at 5:18 pm

I’m kind of shocked by the degree to which presumably left-leaning people commenting here are less cognizant of the rationale for juvenile justice system than Justice Kennedy. Well, I guess mass incarceration and school-to-prison pipelines are working nicely for the US; AFAIK, no other Western country even allows trying 16 year olds as adults and in no other Western country would a 20 year prison term even be considered for a minor. Some of the posts here are terribly depressing.

I agree, I’m rather surprised by the amount of posts calling for state enacted vengeance and to try juveniles as adults. It’s useful to take into account the judge’s lack of leniency in other cases, but disturbing that the outrage isn’t over the sentencing of other minors being too harsh, but rather over the sentencing of this minor not being harsh enough. I suppose we shouldn’t be surprised by our incarceration rates.

And I agree with those suggesting that we need to reevaluate our relationship with cars, which, like guns we tend to treat as toys.

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Consumatopia 12.17.13 at 6:01 pm

America might be an outlier in punishing juveniles, but apparently we’re also bit unusual in how early we let people drive. Note how frequently “18″ shows up here: http://en.wikipedia.org/wiki/List_of_countries_by_minimum_driving_age .

Some of the other countries with similar driving ages also have provisions to try adolescents as adults (e.g. Canada).

I’m glad that SCOTUS ended capital punishment for minors. I think we should also end LWOP for 17 and unders. And I realize that prison safety is a huge problem.

But I don’t remember magically turning vastly more responsible on my 18th birthday. I think that if a 16-year-old kills multiple people, they shouldn’t be free for at least a decade. They should be stuck in some kind of government facility. It doesn’t have to be a prison, but it does have to be at least somewhat punitive–it should be a place 16y.o.s don’t want to be. Not because I think the suffering of the punished is intrinsically good, but because I think civilized respect for the victims calls for at least that much.

If you call that barbaric, then what you and I call civilization are mutually exclusive.

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Ronan(rf) 12.17.13 at 6:16 pm

They’ll have to pry that gear stick from my cold, dead hands.

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Barry 12.17.13 at 6:20 pm

Chatham:

“…but rather over the sentencing of this minor not being harsh enough. I suppose we shouldn’t be surprised by our incarceration rates.”

I’m bit tired of the fact that everbody saying this like this (‘…not harsh enough’) is missing the pretty clear fact that most of the outrage is due to the fact that this guy got massive leniency for a felony killing four people, due to the fact that he’s white and from a rich family.

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MPAVictoria 12.17.13 at 6:34 pm

“They’ll have to pry that gear stick from my cold, dead hands.”

You and me both Ronan.

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Theophylact 12.17.13 at 6:48 pm

Getting harder and harder to buy a car with a stick shift, though.

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Mao Cheng Ji 12.17.13 at 6:59 pm

Yup. And even the ignition key ain’t there no more. No wonder them drivers go nuts.

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MPAVictoria 12.17.13 at 7:01 pm

“Getting harder and harder to buy a car with a stick shift, though.”
Especially in North America.

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Chatham 12.17.13 at 7:16 pm

I’m bit tired of the fact that everbody saying this like this (‘…not harsh enough’) is missing the pretty clear fact that most of the outrage is due to the fact that this guy got massive leniency for a felony killing four people, due to the fact that he’s white and from a rich family.

So if a minor is driving drunk, loses control of the car and hits someone, what is the appropriate response? Try them as an adult and send them to prison for 10 years? You’re free to think that way, but it definitely puts you closer to the “tough on crime” types that have encouraged harsher penalties and massive incarceration rates.

How about if a minor swerves off the road driving drunk and there’s no one there – should they get a similar sentence for the same action?

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TheSophist 12.17.13 at 7:28 pm

And in the “it was ever thus” department… about a decade ago the Roman Catholic Bishop of Phoenix hit a pedestrian, killed him, and then left the scene. Any guesses on how much jail time he did?

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Consumatopia 12.17.13 at 7:42 pm

@98 I’m bit tired of the fact that everbody saying this like this (‘…not harsh enough’) is missing the pretty clear fact that most of the outrage is due to the fact that this guy got massive leniency for a felony killing four people, due to the fact that he’s white and from a rich family.

That’s definitely the most outrageous aspect, but, honestly, if every 16 year old was punished this way, I would still be a little bit outraged. I don’t have a problem with saying Ethan Couch’s punishment is not harsh enough, even in an absolute, non-comparative sense.

@103 So if a minor is driving drunk, loses control of the car and hits someone, what is the appropriate response? Try them as an adult and send them to prison for 10 years?

Kill four someones, and paralyze a fifth? He ought to be sent somewhere for at least 10 years.

You’re free to think that way, but it definitely puts you closer to the “tough on crime” types that have encouraged harsher penalties and massive incarceration rates.

I don’t care who I’m “close to”. I care about what’s right. But if I did care, I’d be a lot more ashamed to be anywhere near someone who thinks 16 year olds should get away with killing. I have absolutely zero confidence in the moral judgment of anyone who would try to shame me for thinking that Ethan Couch should be punished more (or even just, God forbid, publicly named!). It is almost to the point that if I ever find myself agreeing with anything you say in some other context, I’ll be more likely to doubt myself.

How about if a minor swerves off the road driving drunk and there’s no one there – should they get a similar sentence for the same action?

No. That’s not how punishing manslaughter works. You can q1

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Tim Wilkinson 12.17.13 at 7:43 pm

Chatham: Actually, yes, a similar sentence (not necessarily a harsh one; my comment above is one of many that decries inequality without advocating a policy of Draconian punishments).

I don’t know if there’s a specific separate offence of ‘causing death by dangerous driving’ in the US as there is in England and Wales, but it’s always struck me as rather unfair that there should be such an element of luck involved: equally dangerous drivers should not be give a lighter sentence just because they happen not to kill anyone; equivalently, those who are unlucky in the homicide department shouldn’t therefore be penalised more harshly than the rest. Personally, I tend toward the view that de facto, in the UK anyway, dangerous but felicitously non-lethal drivers tend to get off too lightly for general deterrent purposes.

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Consumatopia 12.17.13 at 7:43 pm

Finishing my comment, that’s not how punishing manslaughter works for adults or children. You can quibble with that, but it’s orthogonal to the question of how minors should be punished relative to adults.

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Barry 12.17.13 at 7:59 pm

12.17.13 at 7:16 pm

Me: I’m bit tired of the fact that everbody saying this like this (‘…not harsh enough’) is missing the pretty clear fact that most of the outrage is due to the fact that this guy got massive leniency for a felony killing four people, due to the fact that he’s white and from a rich family.

Chatham : “So if a minor is driving drunk, loses control of the car and hits someone, what is the appropriate response? Try them as an adult and send them to prison for 10 years? You’re free to think that way, but it definitely puts you closer to the “tough on crime” types that have encouraged harsher penalties and massive incarceration rates.”

Our point, which you seem to be missing yet again, is that if the minor is poor/black/hispanic and in Texas, that would probably be the standard response.

“How about if a minor swerves off the road driving drunk and there’s no one there – should they get a similar sentence for the same action?”

Please stop BS-ing.

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Chatham 12.17.13 at 8:13 pm

@105
But if I did care, I’d be a lot more ashamed to be anywhere near someone who thinks 16 year olds should get away with killing.

Ted Kennedy and Matthew Broderick got away with killing much more than this kid did. Did you argue that they should have been sent away for at least ten years as well?

@ 106
it’s always struck me as rather unfair that there should be such an element of luck involved: equally dangerous drivers should not be give a lighter sentence just because they happen not to kill anyone; equivalently, those who are unlucky in the homicide department shouldn’t therefore be penalised more harshly than the rest.

I tend to agree. The legal system should be based on the actions of an individual and the likely danger they hold to society. Too often, it seems to be based on the circumstances outside of their control and desire for revenge.

Personally, I tend toward the view that de facto, in the UK anyway, dangerous but felicitously non-lethal drivers tend to get off too lightly for general deterrent purposes.

In the US too, I believe. There are numerous cases of reckless driving costing lives and the driver facing little to no consequences, and plenty of cases of reckless driving that get ignored (drivers speeding and not stopping – or even slowing down – for students as they cross at the corner crosswalk at their school).

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Tim Wilkinson 12.17.13 at 8:19 pm

I agree with that last clause, bt would ted to quibble about the ‘legal luck’ aspect, since I tend to think thatpuishment is justified only as a necessary part of a deterrent system of laws.

I suppose you would disagree if you think vengeange on behalf of surviving relatives provides a sui generis justfication for additional punishment, or if you think that something like James Stephen’s approach (“The criminal law bears the same relation to the urge for revenge as marriage does to the sexual urge.”) applies, so that a failure to mete out sufficiently harsh punishment for manslaughter would, say, lead to a destabilising epidemic of ‘vigilante’ vengeance. That is of course an entirely empirical issue, and highly dubitable imo.

It would also be necessary to clarify what is to be done in cases where a loner with no family is killed. Presumably, equal treatment of offenders or simplicity of law or something would be drafted in, so that such particulars are held to be irrelevant in individual cases, even though the general policy is based on a presumption that such considerations do often, or usually, apply. Or maybe you bite the bullet and go for an explicitly vengeance-based system, in which the victim’s family decide the punishment.

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Tim Wilkinson 12.17.13 at 8:20 pm

Sorry – that to Consumatopia @107

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Chatham 12.17.13 at 8:21 pm

@108
Our point, which you seem to be missing yet again, is that if the minor is poor/black/hispanic and in Texas, that would probably be the standard response.

You were asked earlier if that should be the standard response and didn’t answer. Some of us care whether or not a sentence is just in addition to whether or not it is equitable. If you think that’s missing the point, well, I disagree.

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Trader Joe 12.17.13 at 8:22 pm

The concurrent media reports of the case suggest that the judge viewed the Rehab+10 year probation as actually allowing the state greater long-term oversight of Couch and his actions relative to the prosecution’s proposed 20 year sentence which would likely have resulted in the defendant being released in 2 years.

That doesn’t say anything to the rich vs. poor or black vs. white points raised above, but it does provide at least some context as to why a non-incarceration punishment might have some merit.

I’d be inclined to side with the view that there should have been some jail time. Considering the vehicle was loaded with 7 passengers screaming for him to slow-down (two of whom were essentially paralized but survived) there was a clear blatant disregard for the safety of people he assumed responsibility for as a driver in addition to the innocents on the side of the road that he killed. Several media reports indicate that some time was served in a juvy detention center both awaiting trial and awaiting transfer to the rehab center, but there wasn’t much detail as to exactly what sort of facility this might be.

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Tim Wilkinson 12.17.13 at 8:36 pm

drivers speeding and not stopping – or even slowing down – for students as they cross at the corner crosswalk at their school

Yes; in the UK we don’t have the barbarous offence of ‘jaywalking’ – pedestrians still in theory have right of way – but drivers very often drive straight at one, expecting one to scuttle out of their way. Brute force in action. Luckily it’s relatively easy, in city contexts and given a reasonable degree of agility anyway, to call their bluff without risking actually being mown down.

I wouldn’t be surprised if some militant pedestrians didn’t start knocking the wing mirrors off cars that do that – the sheer unbelieving shock of the driver at this subversion of the natural order of things would be a delight to see. They have the hard shell, but we are more nimble.

119

TheSophist 12.17.13 at 8:44 pm

There’s a piece just up over at The Atlantic, “I Got Myself Arrested So I Could Look Inside the Justice System”, that tells a sad, sad tale of the different way that the court/law enforcement system looks at white, economically prosperous folks.

120

Stephen Austin 12.17.13 at 9:09 pm

in the UK we don’t have the barbarous offence of ‘jaywalking’ – pedestrians still in theory have right of way

Although jaywalking is not illegal in the UK, pedestrians do not have the right of way (except in some specified situations at pedestrian crossings and road junctions).

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Consumatopia 12.17.13 at 9:20 pm

Ted Kennedy and Matthew Broderick got away with killing much more than this kid did. Did you argue that they should have been sent away for at least ten years as well?

Hadn’t heard about Broderick, I was in grade school at the time. I’ve already paid you more attention than you deserve.

@Tim, 110, even from the perspective of deterrence, I think punishment has to depend on harm, not just culpability, at least when it comes to dangerous driving. At trial, it would be too easy to construct imaginary possibilities “if someone was there you would have killed them!”, too hard to prove that you would have acted differently if a person was there. E.g. if you drift out of lane slightly, you could kill someone walking or parked along the road. But if someone were along the road, you might have been more careful to stay in your lane, or you might even have changed lanes away from them.

Family or lack thereof doesn’t really matter. I think this debate makes clear that a lot of people who don’t know the victims personally are very angry that this could happen to their fellow citizens. Of course, it’s clear that what agitates most people isn’t the actual deaths themselves (sadly, all too frequently) but how system treated the perpetrator. The purpose of retribution here is then not to compensate for suffering, but for the surviving members of the community to reassure each other that their lives matter to each other.

I seem to be one of the few out-and-proud retribution fans here, but I think my motivation here lies behind a lot of other left-leaning policies. If all I cared about was maximizing utility, or even maximizing the utility of the worst off, I’m not sure that I would support universal health care, for example. [puts on neoliberal utilitarian hat, steps behind veil of ignorance]Better to spend that money on malaria reduction and climate change mitigation.[/removes hat and veil]

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Ed Herdman 12.17.13 at 9:42 pm

@ 91: That’s your own browser’s word-checking software, add it to the custom dictionary with a right-click, if you can, or better yet look up acquiring a British English dictionary.

Man, remembering the confused discussions I had with people trying to explain that my car has an automatic, but the shifting lever is, well, a lever…the new hybrid automatics erase a lot of the potential for error and sloppiness inherent in the completely manual systems, last I heard.

On topic, I tend to extend Kennedy’s rationale for leniency even to adults – as somebody else mentioned you don’t magically become responsible once you cross a threshhold. For me, the big issue is trying to organize the system not around wasteful incarceration but on rehabilitation (so far as that’s effective – unfortunately the apparent randomness of success in individual cases will always militate politically towards punitive systems), and racial biases will always lead juries to think that socially stable people are “more likely not to reoffend” than your poor minority folks.

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godoggo 12.17.13 at 9:54 pm

OK, this seems to be the right thread. As I was saying…

Just saw that commercial taken from the Herzog documentary, with the guy who knocked off a carload full of Amish because he was texting “I love you” while driving. Did it while he was all grown up, too. And now he’s Scott-free, apparently. Walking the streets. Even got a nice, forgiving letter from the Amish. Does this drive you crazy?

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MPAVictoria 12.17.13 at 10:49 pm

“Just saw that commercial taken from the Herzog documentary, with the guy who knocked off a carload full of Amish because he was texting “I love you” while driving. Did it while he was all grown up, too. And now he’s Scott-free, apparently. Walking the streets. Even got a nice, forgiving letter from the Amish. Does this drive you crazy?”

Probably alone here but I have never been able to work myself up in an Old Testament lather over some making a mistake. Was it a stupid and foreseeable mistake? Yes, but there was no malice. Just a moment of idiocy. We all have them, most of us are just lucky enough not to kill someone when we do.

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godoggo 12.17.13 at 10:56 pm

I don’t think there’s any malice in driving drunk either, nor is there any expectation that it will lead to deaths, whether the driver’s or someone else’s. But it is irresponsible, as is texting while driving.

126

godoggo 12.17.13 at 11:01 pm

You know, I can be petty and vengeful as hell for personal slights, but I don’t pretend that it’s rational or a good model for general principles, let alone law.

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godoggo 12.17.13 at 11:14 pm

Well, that last comment didn’t come out so good.

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ezra abrams 12.17.13 at 11:40 pm

geez, why make it complex when a simple answer will do: his parents spent money, got a good Atty, who found a way out
I mean, isn’t the def of a good lawyer someone who gets his client off ?

An oldie but goody:
[Geraldine] Ferraro’s son, John Zaccaro Jr., was convicted in 1988 of selling cocaine to an undercover Vermont state trooper and served three months under house arrest

(imo, a black kid harlem not likely to get only 3 months house arrest)

129

godoggo 12.17.13 at 11:48 pm

Well, the discussion has drifted from whether the system is unfair (obviously yes) to how punitive we should generally be toward people who are responsible for fatal accidents (not overmuch, imo), and whether 16-year-olds should be tried as adults (no, imo). That’s what happens when we start blabbing on the internet.

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Tim Wilkinson 12.18.13 at 12:14 am

Stephen Austin – well, ‘pedestrians still have right of way’ was, as the syntax suggests, really only to restate the absence of an offence of jaywalking (or similar). ‘Technically’ rather than ‘legally’ was a bit of a loose term; ‘right of way’ isn’t, as far as I know, usually used as a technical legal term in this context. But pedestrians are permitted to cross the road anywhere (except motorways), aren’t they?

This isn’t the same as ‘priority’, which, practically speaking, comes down to whether a car is supposed to stop to let you cross. Once you’re on the road, the driver had better not drive into you on purpose. At that point there’s not much reason to be concerned about priority rules – perhaps conceivably in a civil suit some tiny quantum of contributory negligence might be imputed or something, in some circumstances; I dunno.

Taking a realist approach, I can certainly say that I have never known the police to take any action against a pedestrian who appears to have been crossing the road in an orderly fashion and can plausibly claim to have instinctively fended off an oncoming vehicle which failed to slow down.

MAVictoria – Was it a stupid and foreseeable mistake? Yes, but there was no malice. Just a moment of idiocy. We all have them, most of us are just lucky enough not to kill someone when we do. Well, those of us who have elected, at some personal cost, to refuse to drive and instead to throw in our lot with the users of public transport are not ‘lucky’ not to kill anyone when we have a ‘moment of idiocy’ – or indeed if we get pissed. One could perfctly well argue that being harmed out of a callous disregard only adds insult to injury – at least a murderer with malice aforethought does one the courtesy of paying attention while killing one.

Consumatopia – 1. At trial, it would be too easy to…, too hard to… – this kind of objection is pretty common and usually mistaken. Courts decide all sorts of issues like this all the time, and when they are operating properly make a reasonably good fist of doing so. ‘How dangerously was this person driving’ is not an unusually difficult thing to decide.
2. The purpose of retribution here is…for the surviving members of the community to reassure each other that their lives matter to each other. I don’t really see how this is supposed to work – still less how it iks supposed to be the best way of doing that. If people expect a cetain kind of retibution and it’s not forthcoming, no doubt they’ll take it as a kind of disrespect, but those expectations are not hard-wired. I’d assimilate this to the rhetoric of ‘sending a message’ – the problem is that generally, the use of penal sanctions is a pretty imprecise and inefficient means of communication.

3. Better to spend that money on malaria reduction and climate change mitigation – that might be right, implausibly assuming, that is, that all resources currently dedicated to everything else less important than (non-malaria-preventing) healthcare has already been diverted to those ends without success, yet success is still in prospect. (In fact, malaria could probably be eliminated quite cheaply were the will there; say, if NASA, RAND, the CIA and the DoD and their entire budgets were all peremptorily repurposed to that end. Ditto climate change, especially since the use of fewer resources would suffice to deal with the latter, even in the absence of any effort to solve the relatively trivial technical issue of clean energy generation.

4. I seem to be one of the few out-and-proud retribution fans here, but I think my motivation here lies behind a lot of other left-leaning policies. – What is that motivation, then, and how does it relate to other left-wing policies? I genuinely don’t get it.

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Katherine 12.18.13 at 12:40 am

But pedestrians are permitted to cross the road anywhere (except motorways), aren’t they?

Yes.

Frankly, I always gasp at how punitive the US justice system is, and how long sentences are, no matter how old the defendant is.

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MPAVictoria 12.18.13 at 12:48 am

“One could perfctly well argue that being harmed out of a callous disregard only adds insult to injury”

That is very clever sounding and witty (bravo!) but not really sensible unless you are arguing for harsher sentences for manslaughter than murder in the first degree.

Accidents happen. We should work towards reducing them but sending someone to jail for decades over a mistake doesn’t seem right to me. Or a good use of tax payers money for that matter.

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bob mcmanus 12.18.13 at 1:27 am

If cars kill people then alcohol kills even more people. And cars don’t rape or break up marriages or destroy your liver or brain cells or say embarrassing things at office parties.

We talk about eliminating cars or eliminating guns but getting control of this incredibly destructive and socially expensive substance is not even imaginable.

It hasn’t even come up in this thread. The kid was drunk. Alcohol is easily the most important factor here.

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MPAVictoria 12.18.13 at 2:00 am

Well that is just great comrade McManus, at this rate we will all be living in a leftist paradise with no cars, no booze and 20 years hard time for making a mistake.

Sounds super.

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Consumatopia 12.18.13 at 2:09 am

@TimW,

1: I said why I think “how dangerous someone is driving” is essentially subjective and unknowable, but it’s not an argument that particularly interests me, and we seem to agree it’s independent of the other arguments.

2: I don’t know what “hard-wired” means. But it’s inherent to the situation that it’s rational to question whether a society that refuses to punish wrongdoers actually takes the suffering of victims seriously. It’s not hard to find historical examples of communities in which this was actually true–the state refused to punish some crimes because it didn’t take the victim’s suffering seriously, or as seriously as the suffering (or power) of the criminal.

3 and 4: Many left-leaning (that was the term I used, not left-wing) policies seem to be more concerned with the respect due to members of a community than they are average or maximin utility. This is most obvious when it comes to social issues (e.g. gay marriage) but also extends to things like the ADA, community rating/guaranteed issue, or pension obligations towards unionized workers. Most progressives do not insist that we simply find the sickest/poorest/most disabled people and provide aid to them, nor that we devote all energy to reversing climate change because it threatens the entire globe. Perhaps if we were ideally rational people we would. But the plea for harsher punishments is ultimately a communitarian concern, and progressivism would be weaker if all communitarian concern disappeared.

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MPAVictoria 12.18.13 at 2:16 am

“But the plea for harsher punishments is ultimately a communitarian concern”
Only if we agree with you that harsh punishments for children who are a tragic mistake is good for the community. Which I do not.

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Consumatopia 12.18.13 at 2:26 am

Actually, no, you don’t have to agree about that. It might be a misguided communitarian concern, but it’s not a selfish concern.

Here’s what I mean. People look at outcomes like this case and say “Hey! That’s not how things are supposed to work!” You call that concern irrational. But I think if you looked into everyone’s soul and erased everything that led people to resent this outcome, no leftist would be happy with what was left.

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MPAVictoria 12.18.13 at 2:33 am

It is not a communitarian concern Consumatopia, It is a base urge for revenge and punishment. Real fire and brimstone Old Testament stuff and it is not progressive, at least from my point of view.

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Consumatopia 12.18.13 at 2:49 am

The Old Testament isn’t communitarian?

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MPAVictoria 12.18.13 at 2:55 am

It sure isn’t progressive.

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Consumatopia 12.18.13 at 4:52 am

I sure didn’t say that communitarianism is always progressive. I said “progressivism would be weaker if all communitarian concern disappeared”.

I’m not absolutely certain of that claim and could probably be argued out of it. But here’s the thing–I can’t be shamed or sneered out of it, and it’s really pathetic watching trolls like you or Chatham try.

Bottom line to all my posts: Retribution versus deterrence versus rehabilitation, punishments for older teen killers, how we should respond to class-based sentencing disparity and how people should be punished for intoxication leading to deadly accidents are all complicated issues. If you think a position on this stuff is wrong, that’s totally reasonable. If you think a position on this is obviously wrong, you just haven’t thought about it.

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GiT 12.18.13 at 10:02 am

I’m not sure what position, is right, but I lean towards the thought that as far as motivations go, I’m with “retribution” being “obviously wrong.”

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MPAVictoria 12.18.13 at 1:41 pm

Consumatopia I truly wasn’t trying to troll you and I apologize if that is the way I came off. I do strongly feel that shifting our justice system away from revenge and towards a focus on rehabilitation and protecting the public is a vital part of the progressive project.

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Consumatopia 12.18.13 at 2:57 pm

@MPAV, that’s totally reasonable and in large part I agree with you, but can you see how that might conflict with other progressive goals? A rehabilitation focused penal system might end up imposing lighter penalties on those the state deems to be more capable of rehabilitation. I understand that you think this is unfair (32) but that’s the thing–a purely rehabilitation-focused system doesn’t necessarily care about fairness.

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MPAVictoria 12.18.13 at 3:33 pm

“A rehabilitation focused penal system might end up imposing lighter penalties on those the state deems to be more capable of rehabilitation. I understand that you think this is unfair (32) but that’s the thing–a purely rehabilitation-focused system doesn’t necessarily care about fairness.”

The key word in your response is “might”. I am in favour of moving towards more rehabilitative forms of justice for everyone not just the privileged few but I take your point.

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roy belmont 12.18.13 at 5:14 pm

On the one hand McManus is right, on the other hand there must be a reason, besides subjective euphoria, that the names for distilled spirits translate to “water of life” so often.
Possibly because of vermifugical/parasiticidal effects?
People have been drinking – not me, not this morning! – since pre-history.
I was raised around women, my aunts, who were born and well into adolescence before automobilic ubiquity. My grandmother, who I spent a few afternoons with as a very young boy, was born in 1879. She was already raising four of her seven children before cars owned the streets.
She didn’t approve of drinking, backed up by residual Puritanism of hard-shell Baptist anti-fun, but had no precedent, no Biblical guidance, and no readily available cultural standards for judging the machine takeover. It came in subtly at first, then critical-massively with nothing but the banners and fanfare of progress around it.
Anyone who questioned the seduction of power the car and its industrial agents dangled was ridiculed and trivialized.
On the one hand drunk driving, until MADD, was basically, criminally, shrugged off, on the other hand that successful campaign of outraged grief made it seem like the carnage of the road was mostly coming from drunks.
Not even half. And to get to the stats that get it close to half you have to say any presence of alcohol in any involved drivers, causative or no, made it a case of DWI.
The unquestioned acceptance of driving, the hypocritical tolerance/rejection of drinking.
There’s a Darwinian element to that that’s kind of ugly. Instead of some biological disparity/selection, there’s only the inability to foresee danger and avoid it. Survival of the prophetic, or just random culling which is regrettable but somehow morally permissible.
-
Revenge justice has an acceptance built into it, that what happened is over and there isn’t any higher outcome left to strive for than personal gratification, the hungry need for catharsis, with intentional ignorance of the consequences of revenge.
The violent death of a 32 year old crack whore doesn’t call out to the consumer-justice oriented with the same emotional urgency that the violent death of a first-grader does.
The experimental use of dozens of severely retarded institutionalized with terminal consequence isn’t as outrageous as the terrorist car-bomb and its dozens of random “normal” victims. Because?
Because we value some lives much more than others., but we’re forbidden to express that openly.
The essence of rehabilitative justice is the primary goal of making that shit, the crime in question, stop.
Punishment has nothing directly to do with long-range outcome, that has to be rationalized into it. My undocumented evidenceless explanation is the advocates of punishment were traumatically disciplined as children. This becomes internalized. It’s the way it’s supposed to be, you mess up you’re supposed to get hurt. The result is the goal-less suffering inherent in the privatized prison system.
The essence of lex talionis is making the retaliators feel better about things, whether the shit stops or not. Consumer justice, like most forms of consumer-driven morality, goes nowhere good.

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currants 12.19.13 at 1:13 pm

Anonymous asked: When a Texas Judge sentences a wealthy defendant to probation after killing four people in a DUI accident the same day my client gets jail time for stealing a jar of salsa. http://whatthepublicdefender.tumblr.com/

dead thread, I suppose, but that example from a public defender’s tumblr is far too common, especially if you’re not-white and not-wealthy (although either criteria is typically enough warrant non-lenient treatment).

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Fu Ko 12.21.13 at 7:05 pm

Prison sentences are too long, and prison conditions far too harsh and inhumane. But letting this little prick off just because we can explain why he’s rotten is a travesty. The exact same argument that was used by the defense to request leniency here _ought_ to have been used by the prosecution to demand punishment. A spoiled rich kid with no sense of responsibility to others! How did that become a defense argument?

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