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Wealthy “Justice”: The Role Wealth Plays
in Sentencing and in the Affluenza Defense
Danielle Eckenroth∗
ABSTRACT
The right for the accused to present a defense allows a criminal defendant
to proffer reasons as to why they should be found not guilty of the crimes
for which they are charged. Two defenses that may be offered in non-strict
liability criminal cases are intoxication and insanity. Recently, it has been
suggested that a person’s wealth and the lifestyle that wealth affords them
may be used as a defense. This defense has been coined “affluenza.” Affluenza does not fit the reasons and theories behind legal defenses; therefore,
it should not be considered a valid legal defense. Similarly, wealth does not
have a place in sentencing considerations. The United States Sentencing
Guidelines lay out factors that are to be taken into account when sentencing a criminal defendant, and wealth is not one of those factors. However,
a trend has emerged in which the wealthy are given lighter sentences than
“ordinary” citizens. This trend sends the message to American citizens that
if a person is wealthy they are “above” the law, which contradicts the purpose of the United States criminal justice system.
I.
INTRODUCTION
“Wealth is not without its advantages and the case to the contrary, although it has often been made, has never proved widely persuasive.”1
∗
Candidate for Juris Doctor, New England Law | Boston (2015); B.A., Criminal Justice, Legal Studies Minor, Lycoming College (2012). I would first like to thank my parents,
especially my Mom and Ricky, because without your love and support I would not have
made it this far. Second, I would like to thank my friends Emily and Erin for lending an ear
when I needed it, and to my friends I have met during law school with whom I could commiserate on a daily basis. Finally, I want to thank the editors and associates from New England Journal on Criminal and Civil Confinement volumes 40 and 41 for all of their hard
work in helping to write and edit this Note.
1.
JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY 1 (40th Anniversary ed.
1998).
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As the quote above indicates, wealth affords advantages to those who
have it. It is widely known that wealthy persons are treated differently from
average persons.2 This includes specialized treatment in the criminal justice
system, specifically in sentencing.3 Ethan Couch’s case presents a prime
example of wealthy individuals receiving special treatment when being
sentenced.4 The current trend in the United States is to issue lighter sentences to the wealthy compared to those of lower socioeconomic status—
sending the message that wealthy people are above the law, when under the
law, all persons are equal.5 A person’s wealth should not be taken into account when sentencing them because it violates the Equal Protection
Clause, contradicts the reasoning behind punishment, and is contrary to the
purpose of the United States Sentencing Guidelines.
This Note addresses the role wealth plays in sentencing and the “affluenza” defense. Part II of this Note gives a brief background on the theories
of punishment and the sentencing history of the United States. It then discusses the theories behind criminal defenses and explores the defenses of
intoxication and insanity, comparing these two defenses to the “affluenza”
defense. Part III looks at the theory of “affluenza” and discusses its role in
the legal community. Part IV compares sentences that a wealthy person receives in contrast with the sentences the ordinary person receives. Part V
discusses the lack of legal merit “affluenza” has as a defense. This Note
concludes in Part VI by discussing that even though wealth should not be a
factor to consider when sentencing a defendant, there is a trend in the United States to sentence those of wealth lighter than average citizens. Sentencing people of wealth lighter than those who are not wealthy violates the
Equal Protection Clause and the purpose of the United States Sentencing
Guidelines.
2.
See generally KIM PARKER, YES, THE RICH ARE DIFFERENT, PEW SOC. &
DEMOGRAPHIC TRENDS (Aug. 27, 2012), available at www.pewsocialtrends.org/files/2012/
08/sdt-rich-poor-082712.pdf.
3.
See infra Part.IV.A.
4.
See Josh Grossberg, News/Lindsay Lohan: A Timeline of All Her Arrests (and
Boy, There Are a Lot of ‘Em), E! ONLINE (Nov. 29, 2012 10:59 AM PST),
http://www.eonline.com/news/367020/lindsay-lohan-a-timeline-of-all-her-arrests-and-boythere-are-a-lot-of-em; Thomas Jones, The Murder Trial of O.J. Simpson, SCRIBID,
http://www.scribid.com/doc/145924174/The-Murder-Trial-of-OJ-Simpsons#scribd (last visited Apr. 2, 2015); Martha Stewart Convicted on All Four Counts, FOX NEWS (Mar. 8,
2004),
http://www.foxnews.com/story/2004/03/08/martha-stewart-convicted-on-all-fourcounts/; James McAuley, The Affluenza Society, N.Y. TIMES (Dec. 22, 2013),
http://www.nytimes.com/2013/12/23/opinion/the-affluenza-society.html?_r=0.
5.
U.S. CONST. amend. XIV.
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II. PUNISHMENT, SENTENCING, AND DEFENSES REVIEWED
A. Theories of Punishment
Two main theories of punishment include: utilitarianism and retributivism.6 Utilitarians believe that punishment is justified because the pain inflicted by the punishment will help prevent the individual (and others) from
committing the same crime again.7 There are two further subcategories of
utilitarianism: general deterrence and individual or specific deterrence.8
General deterrence operates under the belief that if one person is convicted
of a crime and punished, others in society will look towards that punishment, and want to avoid being punished in the same manner, and not commit the same crime.9 Individual deterrence is premised on the belief that
once a person has committed a crime—and has been punished—the punishment will create fear in that person, and that person will be deterred
from committing the crime again.10
Retributivists believe that punishment is deserved because a person who
broke society’s laws should be punished.11 Like utilitarianism, retributivism takes two forms.12 The first form is known varyingly as assaultive retribution, public vengeance, or societal retaliation.13 This form of retributivism suggests that it is morally right to hate criminals because they have hurt
society, and thus it is acceptable to hurt them in return.14 The second form
of retributivism is called protective retribution.15 Protective retribution
maintains that punishment is handed out because it is a way of maintaining
the moral balance of society.16 Criminal defendants are sentenced accord-
6.
JOSHUA DRESSLER & STEPHEN P. GARVEY, CASES AND MATERIALS ON CRIMINAL
LAW 31 (6th ed. 2012); see also JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 14-18
(6th ed. 2012).
7.
BLACK’S LAW DICTIONARY 1686 (9th ed. 2009); DRESSLER, supra note 6, at 14;
DRESSLER & GARVEY, supra note 6, at 33; MARILYN D. MCSHANE, PRISONS IN AMERICA 5-6
(2008).
8.
See DRESSLER, supra note 6, at 15; DRESSLER & GARVEY, supra note 6, at 35; see
also BLACK’S LAW DICTIONARY, supra note 7, at 514.
9.
BLACK’S LAW DICTIONARY, supra note 7, at 514; DRESSLER, supra note 6, at 15;
DRESSLER & GARVEY, supra note 6, at 35; MCSHANE, supra note 7, at 6.
10.
BLACK’S LAW DICTIONARY, supra note 7, at 514; DRESSLER, supra note 6, at 15;
DRESSLER & GARVEY, supra note 6, at 35; MCSHANE, supra note 7, at 5.
11.
DRESSLER, supra note 6, at 16; DRESSLER & GARVEY, supra note 6, at 39 (arguing
lex talionis or an eye for an eye); MCSHANE, supra note 7, at 3.
12.
DRESSLER, supra note 6, at 17.
13.
Id.
14.
Id.; MCSHANE, supra note 7, at 3.
15.
DRESSLER, supra note 6, at 17. See generally MCSHANE, supra note 7, at 3.
16.
DRESSLER, supra note 6, at 17. See generally MCSHANE, supra note 7, at 3.
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ing to these two theories of punishment.
B. History of Sentencing in the United States
Multiple forms of punishment fall within the two theories of punishment.17 Incarceration is the most popular form of punishment administered
within the United States, resulting in a large number of people in prisons at
both the federal and state level.18
1.
Sentencing Before the Imposition of the Sentencing
Guidelines
Historically, federal statutes stated a maximum number of years that
judges were able to impose, along with a maximum monetary fine.19 Nonetheless, judges still had a wide range of discretion in the length of sentences
handed down or the amount of fines imposed.20 In 1798, Congress enacted
mandatory minimum prison sentences for certain crimes.21 These statutes
established a mandatory minimum and a maximum prison term allowed,
and judges were to sentence defendants within the range established.22
However, judges still retained a wide range of discretion for the length of
sentences imposed on defendants.23
Nearly two centuries later, in 1975, Senator Kennedy sponsored legislation that called for sentencing reform and the creation of the United States
Sentencing Commission.24 Starting in the early 1980s, Congress began
passing legislation that increased the penalties for certain crimes, especially
drug and gun crimes.25 In 1984, Congress passed the Sentencing Reform
Act, which created the United States Sentencing Commission (Sentencing
Commission).26 The Sentencing Commission’s purpose was to promulgate
17.
See generally DRESSLER, supra note 6, at 14-25; DRESSLER & GARVEY, supra note
6, at 30-31; Punishment, LEGALDICTIONARY, http://legal-dictionary.thefreedictionary.com/
Criminal+punishment (last visited Feb. 14, 2014).
18.
See MCSHANE, supra note 7, at 65-66; JAMES J. STEPHENS, BUREAU OF JUSTICE.
STATISTICS, CENSUS OF STATE AND FEDERAL CORRECTIONAL FACILITIES, 2005 (Oct. 2008),
available at http://www.bjs.gov/content/pub/pdf/csfcf05.pdf; Etienne Benson, Rehabilitate
or Punish?, 34 NO. 7 AM. PSYCH. ASSOC. 46 (2003), available at
http://www.apa.org/monitor/julaug03/rehab.aspx.
19.
KATE STITH & JOSE A. CABRANSE, FEAR OF JUDGING SENTENCING GUIDELINES IN
THE FEDERAL COURTS 9 (1998).
20.
Id.
21.
Id. at 10.
22.
Id.
23.
Id.
24.
Id. at 38.
25.
Id. at 43.
26.
ANDREW VON HIRSH ET AL., THE SENTENCING COMMISSION AND ITS GUIDELINES 16
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uniform sentences for crimes that judges would then use to determine the
length of the sentence to be imposed on defendants.27 The Sentencing
Commission proposed the Federal Sentencing Guidelines (Sentencing
Guidelines) in 1987,28 but the Sentencing Guidelines were not enacted until
six months later.29 The Sentencing Guidelines began as a 300-page grid
that named a federal crime, a base offense level, and a punishment range.30
The Sentencing Guidelines also allowed for upward or downward adjustments according to relevant conduct, other offense adjustments, and criminal history.31
2.
Sentencing Reform and Current Sentencing Practices
In 2004, the United States Supreme Court ruled that the Sentencing
Guidelines were merely advisory and not mandatory, but judges were still
required to consider the sentencing ranges recommended by the Sentencing
Guidelines when sentencing a defendant.32 Between taking into account the
Sentencing Guidelines, mandatory minimums, statute ranges, and ThreeStrikes Laws, it would seem that judges now have little, if any, discretion
in the sentences they impose.33 When sentencing a defendant, certain factors are to be taken into account.34 Title 18 section 3553 of the United
States Code states that a court should impose a sentence sufficient for the
crime committed, but the sentence should not be greater than the purposes
set out later on in the section.35 The factors that section 3353 take into account are: the nature and circumstances of the offense and the history of the
defendant,36 the need for the sentence imposed,37 the sentences that the
sentencing range establishes for the category of the offense,38 and “the
need to avoid unwarranted sentence disparities among defendants . . . who
have been found guilty of similar conduct . . . .”39
(1987).
27.
Id.
28.
Id.
29.
STITH & CABRANSE, supra note 19, at 57.
30.
Id. at 67-68.
31.
Id. at 70-71.
32.
See United States v. Booker, 543 U.S. 220, 245 (2005); CASSIA SPOHN, HOW DO
JUDGES DECIDE? THE SEARCH FOR FAIRNESS AND JUSTICE IN PUNISHMENT 250 (2d ed. 2009).
33.
See SPOHN, supra note 32, at 251-68.
34.
See generally 18 U.S.C. § 3553 (2012).
35.
See id. § 3553(a).
36.
Id. § 3553(a)(1).
37.
Id. § 3553(a)(2).
38.
Id. § 3553(a)(4)(A).
39.
Id. § 3553(a)(6).
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The statute further states that a court should impose sentences within the
range the Sentencing Guidelines provide, and the aggravating or mitigating
circumstances to be considered for possible range deviation.40 Section 3553
also states that when there is no applicable Sentencing Guideline range for
an offense other than a petty offense “the court shall also have due regard
for the relationship of the sentence imposed to sentences prescribed by the
guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.”41 The statute does
not mention that a defendant’s wealth or lack there of, should be considered
when a judge is sentencing him or her.42
C. Theories of Criminal Defenses
There are two categories of criminal defenses: justification and excuse.43
A justification defense arises when the conduct is “otherwise criminal,
which under the circumstances is socially acceptable and which deserves
neither criminal liability nor even censure.”44 Self-defense is an example of
a justification defense because the defendant proffers that the reason he or
she acted was because the defendant was protecting themselves or others,
therefore justifying the defendant’s response.45 An excuse defense focuses
on the person’s actions and tries to show that the person is not morally culpable for his conduct.46 Essentially, an excuse defense provides that even
though a person has harmed society, that person should not be blamed or
punished for his actions.47 Intoxication and insanity are examples of excuse
defenses.48
40.
41.
42.
43.
Id. § 3553(b)(1).
Id.
See id. § 3553.
See DRESSLER, supra note 6, at 204-05; DRESSLER & GARVEY, supra note 6, at
464-65. See generally J. C. SMITH, THE HAMLYN LECTURES: JUSTIFICATION AND EXCUSE IN
THE
CRIMINAL
LAW
7-13
(40th
ser.,
1989),
available
at
http://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialscie
nces/law/pdfs/Justification_and_Excuse_in_the_Criminal_Law.pdf.
44.
DRESSLER, supra note 6, at 204 (citing Peter D. W. Heberling, Note, Justification:
The Impact of the Model Penal Code on Statutory Reform, 75 COLUM. L. REV. 914, 916
(1975)).
45.
See generally DRESSLER, supra note 6, at 221-39; DRESSLER & GARVEY, supra
note 6, at 481-512; SMITH, supra note 43, at 7-13; Jamison Koehler, On the Criminal Defenses of “Justification” and “Excuse,” KOEHLERLAW (Feb. 21, 2012),
http://koehlerlaw.net/2012/02/on-the-criminal-defenses-of-justification-and-excuse/.
46.
DRESSLER, supra note 6, at 205; DRESSLER & GARVEY, supra note 6, at 465; Koehler, supra note 45. See generally SMITH, supra note 43, at 7-13.
47.
DRESSLER, supra note 6, at 205; DRESSLER & GARVEY, supra note 6, at 465; Koehler, supra note 45. See generally SMITH, supra note 43, at 7-13.
48.
DRESSLER & GARVEY, supra note 6, at 584, 592; see DRESSLER, supra note 6, at
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The Intoxication Defense
Joshua Dressler defines the term “intoxication” as a “disturbance of
mental or physical capacities resulting from the introduction of any substance into the body.”49 There are two types of intoxication defenses.50 The
first type of intoxication is voluntary intoxication, in which defendants are
culpable for their state of intoxication because they knowingly ingested the
intoxicant.51 Courts commonly state that voluntary intoxication is not an
excuse for a defendant’s criminal behavior.52
The second type of intoxication is called involuntary intoxication.53 Involuntary intoxication occurs when a person is not responsible for his or
her intoxication.54 Some examples of involuntary intoxication involve situations where a person is coerced to ingest an intoxicant, where there is an
unexpected reaction to a medication the person is taking, or where there is
pathological intoxication.55 Pathological intoxication is defined as “intoxication grossly excessive in degree, given the amount of the intoxicant, to
which the actor does not know he is susceptible.”56 Unlike voluntary intoxication, courts generally accept involuntary intoxication as a defense for
which a defendant is entitled to an acquittal.57
2.
The Insanity Defense
Merriam-Webster defines insanity as “severe mental illness: the condition of being insane; a deranged state of the mind usually occurring as a
specific disorder.”58 However, there is a separate definition for legal insanity that makes a slight distinction from colloquial insanity.59 Legal insanity
is defined as, “any mental disorder severe enough that it prevents a person
from having legal capacity and excuses the person from criminal or civil
317, 333.
49.
People v. Low, 732 P.2d 622, 627 (Colo. 1987) (quoting MODEL PENAL CODE §
2.08(5)(a)); DRESSLER, supra note 6, at 317.
50.
DRESSLER, supra note 6, at 318.
51.
Id. at 319.
52.
Id. at 320.
53.
Id. at 318.
54.
Id. at 328.
55.
Id. at 328-29.
56.
Id. at 329; see City of Minneapolis v. Altimus, 238 N.W.2d 851, 855 (Minn. 1976)
(quoting MODEL PENAL CODE § 2.08(5)(c)).
57.
DRESSLER, supra note 6, at 329.
58.
Insanity,
MERRIAM-WEBSTER,
http://www.merriamwebster.com/dictionary/insanity (last visited Mar. 9, 2014).
59.
BLACK’S LAW DICTIONARY, supra note 7, at 914.
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responsibility. Insanity is a legal, not a medical standard.”60
The common law provides three tests that can be used to determine legal
insanity.61 The first test to determine legal insanity is known as the
M’Naghten rule,62 and seventeen states and the federal government use it.63
This test maintains that a person suffers from legal insanity if the defendant:
[C]learly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was doing, or
if he did it, that he did not know that what he was doing was wrong.64
The second common law test used to determine insanity is called the “Irresistible Impulse” or “Control” Test (Irresistible Impulse Test).65 This test
expands upon the M’Naghten rule by adding an additional prong:66 a defendant is insane if his or her diseased condition of mind drives him or her
by an insane impulse, that is irresistible, to commit the crime.67 The impulse must not be a building impulse, and it must completely undermine the
defendant’s free will.68
The final common law test for insanity is known as the Product Test.69
The Product Test is a but-for test, which states that a defendant is not criminally liable for the criminal actions committed if the actions were the
product of mental disease or defect.70 However, another test a judge may
choose to use in a case to determine legal insanity is laid out in section 4.01
of the Model Penal Code (MPC).71 The MPC states that a person suffers
from legal insanity if that person as a result of their mental disease or defect, lacked the substantial capacity either to appreciate the criminality or
60.
61.
Id. at 865; MERRIAM-WEBSTER, supra note 58.
DRESSLER, supra note 6, at 343-47; DRESSLER & GARVEY, supra note 6, at 599-
600.
62.
State v. Johnson, 399 A.2d 469, 472 (R.I. 1979); DRESSLER, supra note 6, at 34350; DRESSLER & GARVEY, supra note 6, at 600.
63.
DRESSLER, supra note 6, at 344. One state has adopted the first prong of the
M’Naghten test and ten states have adopted the second prong of the original test. Id.
64.
Johnson, 399 A.2d at 472 (quoting M’Naghten’s Case, 8 Eng. Rep. 718, 722
(1843)); see DRESSLER, supra note 6, at 343-45.
65.
Johnson, 399 A.2d at 474; DRESSLER, supra note 6, at 346-47.
66.
Johnson, 399 A.2d at 474; DRESSLER, supra note 6, at 346.
67.
Johnson, 399 A.2d at 474; DRESSLER, supra note 6, at 346.
68.
Johnson, 399 A.2d at 474; DRESSLER, supra note 6, at 346.
69.
Johnson, 399 A.2d at 474; DRESSLER, supra note 6, at 348-49 (identifying that this
test is also known as the Durham Test because it is the result of the case United States v.
Durham, 214 F.2d 862 (D.C. Cir. 1954)).
70.
Johnson, 399 A.2d at 474; DRESSLER, supra note 6, at 348-49.
71.
MODEL PENAL CODE § 4.01 (2012).
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wrongfulness of his or her conduct or to conform his or her actions to the
requirements of law.72 Under these tests used to determine legal insanity,
the inherent aspects of affluenza do not comport with the definition of legal
insanity.73
III. HELP! I HAVE CONTRACTED AFFLUENZA, AND NOW I CAN’T GO TO
JAIL!
A. The Theory of Affluenza
It has only been in the past seven years that the term “affluenza” has received recognition.74 British psychologist Oliver James is the man responsible for the development of the theory of affluenza, which he discussed in
his book aptly titled Affluenza.75 The term is a combination of the words
“affluence” and “influenza” describing the condition for the desire of
wealth.76 Investopedia defines affluenza as:
A social condition arising from the desire to be more wealthy, successful or to “keep up with the Joneses[.]” []Affluenza is symptomatic of a
culture that holds up financial success as one of the highest achievements. People said to be affected by affluenza typically find that the
very economic success they have been so vigorously chasing ends up
leaving them feeling unfulfilled, and wishing for yet more wealth.77
Through his book, James posits that selfish-capitalism and consumerism
spreads affluenza, and that America is the epitome of selfish-capitalism and
consumerism—the more Americanized a society is the more it will be affected by affluenza.78 No matter the theory behind the “disease,” affluenza
is not a disease recognized in the Diagnostic and Statistical Manual of
Mental Disorders (DSM).79
72.
73.
Id. (emphasis added).
What is the Affluenza Defense?, HG, http://www.hg.org/article.asp?id=31843 (last
visited Feb. 6, 2015).
74.
See generally OLIVER JAMES, AFFLUENZA (2007).
75.
See generally id.
76.
Id. at vii.
77.
Affluenza, INVESTOPEDIA, http://www.investopedia.com/terms/a/affluenza.asp (last
visited Feb. 15, 2014).
78.
JAMES, supra note 74, at 33.
79.
See generally AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICS MANUAL OF
MENTAL DISORDERS DSM-5, 917 (5th ed. 2013); Christopher J. Ferguson, Psychologist:
“Affluenza”
Is
Junk
Science,
TIME
(Dec.
14,
2013),
http://ideas.time.com/2013/12/14/psychologist-affluenza-is-junk-science/. The DSM is a
manual that is published by the American Psychiatric Association and is used by mental
health professionals in the United States to diagnose mental disorders. DSM, AM.
PSYCHIATRIC ASS’N, http://www.psych.org/practice/dsm (last visited Mar. 15, 2014).
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B. The Recent Use of Affluenza as a Criminal Defense
The most notable mention of affluenza in the media recently has been in
the Ethan Couch case.80 Ethan Couch is a sixteen-year-old boy from Fort
Worth, Texas.81 While driving his father’s F-350 pickup truck after stealing
two cases of beer from a store, Couch struck and killed four pedestrians.82
Three hours after the accident occurred, Couch’s blood alcohol was tested.83 When the blood test came back the results showed that Couch’s blood
alcohol content was 0.24%—three times the legal limit.84 The results also
showed that there were traces of Valium in his blood.85 As part of his defense, Couch’s attorney asserted that Couch suffered from affluenza and
should not be held culpable for his actions.86
IV. COMPARISONS BETWEEN A WEALTHY PERSON’S SLAP ON THE WRIST
AND AN ORDINARY PERSON’S HARD TIME BEHIND BARS
“[I]n the face of the majestic equality of the laws, which forbid the rich and
poor alike to sleep under the bridges, to beg in the streets, and to steal their
bread.”87
A. A Wealthy Person’s Slap on the Wrist Punishment
In June of 1994, Nicole Brown Simpson, the ex-wife of Orenthal James
“O.J.” Simpson, and her friend Ronald Goldman were found dead outside
80.
Affluenza Defense: Rich Texas Teen Gets Probation For Killing 4 Pedestrians
While Driving Drunk, HUFFINGTON POST (Dec. 12, 2013, 9:07 AM),
http://www.huffingtonpost.com/2013/12/12/affluenza-defense-probation-for-deadlydwi_n_4430807.html; Ashley Hayes, ‘Affluenza’: Is It Real?, CNN (Dec. 13, 2013),
http://www.cnn.com/2013/12/12/health/affluenza-youth/; Richard Kensinger, Affluenza–An
Isolated Case in Texas or a Growing Epidemic in the US?, BRAINBLOGGER (Jan. 26, 2014),
http://brainblogger.com/2014/01/26/affluenza-an-isolated-case-in-texas-or-a-growingepidemic-in-the-us/; McAuley, supra note 4.
81.
Hayes, supra note 80; McAuley, supra note 4.
82.
Affluenza Defense, supra note 80; McAuley, supra note 4.
83.
Kat Robinson, Ethan Couch Kills Four People, Paralyzes One: Serves No Jail
Time, WIRE (Dec. 12, 2013), http://thewire.sheknows.com/2013/12/12/ethan-couchkills-4people-paralyzes-1-serves-no-jail-time/.
84.
Affluenza Defense, supra note 80; McAuley, supra note 4.
85.
No Jail for Rich ‘Affluenza’ Teen, Ethan Couch,
After
Deadly
Wreck:
Judge,
N.Y.
DAILY
NEWS
(Feb.
5,
2014),
http://www.nydailynews.com/news/national/affluenza-teen-ethan-couch-due-back-courtarticle-1.1602998.
86.
Affluenza Defense, supra note 80; Kensinger, supra note 80.
87.
ANATOLE FRANCE, THE RED LILY 95 (Frederic Chapman ed., Winifred Stephens
trans., New York: John Lane Company 1910).
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of Nicole Brown Simpson’s condominium.88 O.J. Simpson was arrested
and charged with the murders of Brown Simpson and Goldman.89 O.J.’s
trial became the most publicized trial in United States history and the longest trial ever held in California, costing millions of dollars.90 During the trial, Simpson’s lawyer Johnny Cochran stated, “It if doesn’t fit, you must acquit.”91 Acquit is what the jury did on October 2, 1995, when they found
Simpson not guilty of the murder charges.92
Martha Stewart is a famous home-maker who became involved in the
criminal justice system in 2004.93 Stewart was convicted of conspiracy,
making false statements about a stock sale, and obstruction of justice.94
Once Stewart was convicted of all the charges against her, she was sentenced to five months in jail, five months under house arrest, two years’
probation, and a $30,000 fine.95
Child actor, Lindsay Lohan, has had a long and sordid history with the
criminal justice system since 2007.96 In May 2007, Lohan was arrested and
charged with driving under the influence (DUI) and possession of cocaine.97 Later that year, Lohan was sentenced to one day in jail, ten days of
community service and three years’ probation.98 On November 15, 2007,
88.
Jones,
supra
note
4;
O.J.
Simpson
Biography,
BIO.,
http://www.biography.com/print/profile/oj-simpson-9484729 (last visited Mar. 4, 2014);
The Simpson Trial Timeline, USATODAY (Oct. 18, 1996, 07:39 PM),
http://usatoday30.usatoday.com/news/index/nns053.htm.
89.
Jones, supra note 4; O.J. Simpson Biography, supra note 88; The Simpson Trial
Timeline, supra note 88.
90.
Jones, supra note 4; O.J. Simpson Biography, supra note 88; The Simpson Trial
Timeline, supra note 88.
91.
Vincent Smith, JOHNNY COCHRAN If the Glove Don’t Fit, YOUTUBE (July 24,
2012), http://www.youtube.com/watch?v=P_apIbmsUwU.
92.
Jones, supra note 4; O.J. Simpson Biography, supra note 88; The Simpson Trial
Timeline, supra note 88.
93.
Martha Stewart’s Incredible Comeback, OPRAH (Oct. 5, 2010),
http://www.oprah.com/oprahshow/Martha-Stewart-and-Her-Incredible-Comeback/print/1.
94.
Constance L. Hays, Martha Stewart’s Sentence: The Overview; 5 Months in Jail
and Stewart Vows, ‘I’ll Be Back,’ N.Y. TIMES (July 17, 2004),
http://www.nytimes.com/2004/07/17/business/martha-stewart-s-sentence-overview-5months-jail-stewart-vows-ll-be-back.html; Martha Stewart Convicted on All Four Counts,
supra note 4; Martha Stewart’s Incredible Comeback, supra note 93.
95.
Hays,
supra
note
94;
Martha
Stewart
Biography,
BIO.,
http://www.biography.com/print/profile/martha-stewart-9542234 (last visited Mar. 4, 2014);
Martha Stewart Convicted on All Four Counts, supra note 4; Martha Stewart’s Incredible
Comeback, supra note 93.
96.
See generally Grossberg, supra note 4.
97.
Id.
98.
Id.; Celebrity Justice: Short Sentences for Stars, TODAY (Aug. 24, 2007),
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Lohan went to prison to serve her single day in jail from her sentence
months earlier, but she ultimately served only eighty-four minutes, before
being released due to overcrowding.99 Over the next two years Lohan had
multiple arrest warrants issued against her and her bail was raised to
$150,000 for multiple missed court dates, all in connection with her 2007
DUI and cocaine possession conviction.100 Finally in July 2010, Lohan’s
probation in relation to her DUI and possession convictions was revoked
and her sentence was extended to ninety days in prison, for which she only
spent two weeks in jail before being released due to overcrowding.101 On
September 24, 2010, Lohan’s DUI and possession probation was revoked
yet again when cocaine was found in her system, and she was once again
sent to jail.102 This time she spent four days in jail before being released
and subsequently entered into a rehab facility.103 In early 2011, Lohan violated her probation again and her sentence was extended to 120 days in jail
and 480 hours of community service, for which she served a little over a
month of the jail term.104
Ethan Couch is a sixteen year-old boy from Texas who, while driving
his father’s truck under the influence of alcohol and a controlled substance,
hit and killed four pedestrians.105 After he was convicted of intoxication
manslaughter, the Texas judge sentenced Couch to ten years of probation, a
portion of which is to be spent at a rehabilitation center.106 The rehabilitation center where Couch is to carry out part of his sentence is in Newport
Beach, California and costs $450,000 a year, a fee his parents are to pay.107
Among other classes, the rehabilitation center offers equestrian, karate, and
cooking classes.108
http://www.today.com/id/20428963/ns/today-today_entertainment/t/celebrity-justice-shortsentences-stars/#.UssklBl_z24.
99.
Grossberg, supra note 4; Celebrity Justice: Short Sentences for Stars, supra note
98.
100.
Grossberg, supra note 4.
101.
Id.
102.
Id.
103.
Id.
104.
Id.
105.
See supra Part III.B.
106.
See Affluenza Defense, supra note 80; Kensinger, supra note 80; McAuley, supra
note 4.
107.
Affluenza Defense, supra note 80.
108.
AC360 Exclusive, Hear From ‘Affluenza’ Doctor, CNN (Dec. 13, 2013),
http://www.cnn.com/2013/12/12/health/affluenza-youth/.
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B. An Ordinary Person’s Hard Time Behind Bars
A person on trial for a murder in California, like the murders allegedly
committed by Simpson, would most likely have a public defender, because
California is part of the county-based public defender (CBPD) system.109
In a survey prepared by the Bureau of Justice Statistics (BJS) in 2007,
CBPD offices handled over 4 million cases.110 According to the BJS’s report, 516 of the 530 CBPD offices handled more than the recommended
case-load for public defenders.111 It is likely that a defendant charged with
murder would be represented by a public defender and unable to afford the
defense that Simpson had for his trial.112 Due to the inability to afford the
legal resources that O.J. Simpson was able to afford, a defendant would be
more likely to be convicted and receive a twenty-five year to life sentence.113
An ordinary person convicted of the four offenses that Martha Stewart
was convicted of would face around twenty years in prison.114 An ordinary
person convicted of a DUI offense, like Lindsay Lohan, for a first offense
would be subject to ninety-six hours in jail but no more than six months.115
A defendant charged with a DUI offense could also face three to five years
of probation.116 If a person violates his or her probation, section 23152 of
the California Criminal Code provides that the court shall revoke the suspension of the sentence, revoke or terminate probation, and order the person to serve the rest of the sentence in prison.117 Lohan’s conviction of
possession of cocaine under the California Criminal Code is a felony offense,118 and requires felons to serve at least one year in prison.119
109.
Donald J. Farole, Jr. & Lynn Langton, County-Based and Local Public Defender
Offices, 2007, BUREAU OF JUSTICE STATISTICS 1 (Sept. 2010), available at
http://www.bjs.gov/content/pub/pdf/clpdo07.pdf.
110.
Id. at 3.
111.
Id. at 1. In 1973, the National Advisory Commission on Criminal Justice Standards and Goals established a recommended number of cases public defense attorneys should
not exceed in a single year; later the American Bar Association adopted these numbers.
LAURENCE A. BENNER, ELIMINATING EXCESSIVE PUBLIC DEFENDER WORKLOADS,
AMERICANBAR
4
(2011),
available
at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/cjsu1
1_benner.authcheckdam.pdf. The adopted numbers are 150 non-capital felony cases, 400
non-traffic misdemeanor cases and 200 juvenile cases. Id.
112.
See generally Benner, supra note 111; Farole, Jr. & Langton, supra note 109.
113.
CAL. PENAL CODE § 190 (2012).
114.
Martha Stewart Convicted on All Four Counts, supra note 4.
115.
CAL. VEH. CODE § 23536 (2013).
116.
Id. § 23600.
117.
Id. § 23602 (2010).
118.
CAL. HEALTH & SAFETY CODE §§ 11054, 11350 (2013).
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The same judge who sentenced Ethan Couch previously sentenced an
average fourteen-year-old boy, for a deadly assault, to ten years in a juvenile detention facility, unlike Couch, who was sentenced to a plush rehabilitation facility after killing four people.120 In Texas, a person who kills
another person while operating a motor vehicle is guilty of a felony in the
second degree.121 A felony in the second-degree in Texas is punishable by
no less than two years and up to twenty years in prison.122 While juvenile
sentencing is focused more on rehabilitation and juveniles are evaluated on
a case-by-case basis,123 these two examples show that an ordinary person
convicted of the same or similar crime that Couch was convicted of would
most likely receive a sentence longer than ten years of probation and time
at a rehabilitation center.124
V. THE MERIT OF AFFLUENZA AS A DEFENSE
A. Similarities or Lack Thereof Between Excuse Defenses and
Affluenza
G. Dick Miller, psychologist for the defense in the Ethan Couch case,
stated that even though affluenza is not a recognized disorder, it is a legitimate disorder much like insanity.125 The “disease” developed in Ethan
Couch’s case because his parents are very affluent.126 Due to his parents’
money and the fact that his parents set no boundaries for him, Couch developed the belief that he could do whatever he wanted to do without being
held accountable for his actions.127 Miller likened this to insanity because
Miller proposes that affluenza distorts a person’s perception of reality to
such a degree as to absolve accountability, which equates to an excuse defense.128 An excuse defense states that a person is not morally culpable for
119.
Peter Clarke, What is a Felony?, LEGALMATCH, http://www.legalmatch.com/lawlibrary/article/what-is-a-felony.html (last modified Oct. 3, 2013, 02:31 PM PDT).
120.
AC360 Exclusive, supra note 108.
121.
TEX. PENAL CODE § 49.08 (2013).
122.
Id. § 12.33.
123.
In re Gualt, 387 U.S. 1, 15-16 (1967).
124.
Affluenza Defense, supra note 80; Hayes, supra note 80; Kensinger, supra note
80.
125.
McAuley, supra note 4.
126.
Affluenza Defense, supra note 80; Kensinger, supra note 80; McAuley, supra note
4.
127.
See Affluenza Defense, supra note 80; Kensinger, supra note 80; McAuley, supra
note 4.
128.
See DRESSLER, supra note 6, at 343-47; DRESSLER & GARVEY, supra note 6, at
599-602; McAuley, supra note 4.
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his or her actions for reasons like intoxication and insanity.129 The insanity
defense provides that due to some mental disease or defect, the person who
committed the crime cannot fully appreciate the wrongful nature of the actions committed.130 Miller argues affluenza is similar to insanity because a
person who suffers from affluenza, like a person who suffers from insanity,
does not realize that actions committed have consequences.131 In the case
of affluenza, the person, who has no boundaries, plenty of money, and enjoys a plush lifestyle, believes ordinary societal rules are not applicable to
them.132 However, unlike insanity, where a person suffers from a recognized mental disease or defect, affluenza is not a recognized psychological
disorder.133 Therefore, a defendant with affluenza would not be able to present the fact that they suffer from a recognized mental disease or defect to
the judge or jury as a defense against culpability.134
Affluenza is dissimilar to involuntary intoxication because the person
“suffering” from affluenza has not ingested a drug or other intoxicant that
severely alters his or her mental or physical capacities.135 A person who
“suffers” from affluenza is still capable of operating on a cognitive level,
where they are aware of what is going on in the surrounding area and what
they are doing is wrong.136 This is unlike a person who is involuntarily intoxicated, that is both physically and mentally impaired, and is unable to
operate at a full functioning level.137
Miller argues that affluenza is like insanity, and would therefore be an
excuse defense.138 Affluenza should fail as an excuse defense however, because it does not hinder a person from fully functioning on a mental and
physical level.139 Moreover, it is not a recognized illness that could be used
as an insanity defense.140 In addition, committing a crime would not be the
129.
130.
131.
132.
133.
134.
DRESSLER, supra note 6, at 205.
See supra Part II.C.2.
McAuley, supra note 4.
See generally McAuley, supra note 4.
Ferguson, supra note 79.
See generally id. (discussing the unlikelihood of success when attempting to use
“affluenza” as a defense).
135.
See People v. Low, 732 P.2d 622, 627 (Colo. 1987); DRESSLER, supra note 6, at 3.
136.
See Kensinger, supra note 80.
137.
Low, 732 P.2d at 627 (quoting COLO. REV. STAT. ANN. § 18-1-804(4) (West
2014)).
138.
McAuley, supra note 4.
139.
See generally Kelly George, Is ‘Affluenza’ a Real Disorder?, EXAMINER (Dec. 13,
2013, 8:30 AM), http://www.examiner.com/article/is-affluenza-a-real-disorder (assuming
that if affluenza is not listed in the DSM—therefore not relied on by physicians, scientists,
and researchers—then it should not be a “disease” worthy of a sustainable defense).
140.
See generally AM. PSYCHIATRIC ASS’N, supra note 79; Ferguson, supra note 79.
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“lesser of two evils,” precluding the necessity defense141 and as long as no
one forced a person suffering from affluenza to commit a crime, a duress
defense is not applicable.142 There is no category of excuse defense that affluenza fits into. Affluenza should not be considered a viable defense. In
accordance with this rationale, California has in fact proposed legislation
that would ban using affluenza as a defense.143
B. Sentencing Wealthy People Differently Violates the Equal
Protection Clause and Contradicts the Reasoning Behind the
Sentencing Guidelines
The Equal Protection Clause of the United States Constitution guarantees that, “no State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; . . . nor deny to
any person within its jurisdiction the equal protection of the laws.”144 In
Yick Wo v. Hopkins, the United States Supreme Court held that, in regards
to the Equal Protection Clause, “[t]hese provisions are universal in their
application, to all persons within the territorial jurisdiction[;] . . . and the
equal protection of the laws is a pledge of the protection of equal laws.”145
Yick Wo also stated that if a law is applied unequally and discriminates between citizens that are in similar circumstances, the denial of equal protection to each person under the law is prohibited by the Constitution.146 Sentencing wealthy citizens and ordinary citizens differently for the
commission of the same or similar crimes violates the Equal Protection
Clause because the law(s) are not being applied equally to both classes of
citizens.
In March of 2014, “one percenter” Robert H. Richards IV (greatgrandson of chemical baron Irenee du Pont) pled guilty to fourth-degree
rape for sexually assaulting his three-year-old daughter and his two-yearold son,147 which are Class C felonies.148 While the Sentencing Guidelines
141.
DRESSLER, supra note 6, at 285 (outlining the basic concept of the excuse defense
of necessity).
142.
Id. (outlining the basic concept of the excuse defense of duress).
143.
A.B. 1508, 2013-2014 Reg. Sess. (Cal. 2014); Eliott C. McLaughlin, California
Bill Would Ban ‘Affluenza’ Defense in Criminal Cases, CNN (Jan. 16, 2014, 12:56 PM),
http://www.cnn.com/2014/01/16/justice/california-affluenzalegislation/index.html?iref=allsearch.
144.
U.S. CONST. amend. XIV § 1 (emphasis added).
145.
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
146.
Caroline Morin, Re-traumatized: How Gendered Laws Exacerbate the Harm for
Same-Sex Victims of Intimate Partner Violence, 40 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 477, 493 (citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)).
147.
Ashley Alman, One Percenter Convicted of Raping Child Dodges Jail Because
He ‘Will Not Fare Well,’ HUFFINGTON POST (Apr. 1, 2014, 1:59 PM EDT),
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allow for up to fifteen years in prison, with no mandatory minimum, lawyers and judges typically call for at least thirty months in prison.149 However, Richards was sentenced to eight years in prison, but his sentence was
suspended because the judge thought that Richards “would not fare well in
prison.”150
In 1998, billionaire heiress Susan Cummings was convicted of voluntary
manslaughter after she killed her boyfriend, Roberto Villeges.151 Cummings was sentenced to sixty days in jail, but she only served fifty-one
days.152 Cummings’ defense attorney stated that the sentence that Cummings received was the lowest sentence for manslaughter he had ever encountered.153 During her time in jail the county sheriff moved all other
women in the jail to other counties, so that Cummings would have the entire women’s section of the jail to herself. She also received unlimited visits
from friends and family members, and had food from restaurants brought in
for her.154 In Virginia, voluntary manslaughter is a Class 5 felony,155 and is
punishable by no less than a year in prison but no more than ten years in
prison.156 These two examples, along with Simpson, Stewart, Lohan, and
Couch,157 show a clear violation of the Equal Protection Clause through
significantly different sentences for wealthy defendants as opposed to ordinary citizens who committed the same or similar crimes.
Similarly, sentencing wealthy people differently for the same or similar
crimes contradicts the purpose and reasoning behind the Sentencing Guide-
http://www.huffingtonpost.com/2014/03/30/robert-richards-rape_n_5060386.html; Cris Barrish, Du Pont Heir Accused of Raping 2 Children in Lawsuit, USA TODAY (Mar. 19, 2014,
3:11 PM), http://www.usatoday.com/story/news/nation/2014/03/18/dupont-heir-accused-ofraping-second-child/6568787/; John Vibes, DuPont Heir Avoids Jail Time After Raping Two
of His Children, PRISON PLANET (Mar. 20, 2014), http://www.prisonplanet.com/dupont-heiravoids-jail-time-after-raping-two-of-his-children.html.
148.
Barrish, supra note 147.
149.
Id.
150.
Alman, supra note 147; Vibes, supra note 147.
151.
Paul Wright, The Crime of Being Poor, PRISON LEGAL NEWS,
https://www.prisonlegalnews.org/%28X%281%29S%28km42q3ftsk2s4xnw5ahhcd55%29%
29/displayArticle.aspx?articleid=6070&AspxAutoDetectCookieSupport=1 (last visited Apr.
4, 2014).
152.
Id. In the same jurisdiction, a woman was convicted of killing a cow and was sentenced to nine months in jail. Id. A person who stole a back scratcher from a store, in the
same jurisdiction as Cummings, was sentenced to 135 days in jail. Id.
153.
Id.
154.
Id.
155.
VA. CODE. ANN. § 18.2-35 (2013).
156.
Id. § 18.2-10.
157.
See supra Part IV.A.
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lines.158 As stated, the Sentencing Guidelines were promulgated to ensure
uniform sentencing across the country—those who commit the same crime
will or should serve the same amount of time, only deviating from the
range set forth by the Sentencing Guidelines due to mitigating or aggravating factors.159 However, by sentencing the wealthy differently from the average citizen, the uniformity intended by the Sentencing Guidelines is invalidated because a person’s wealth is factored into the sentence imposed,
when the Sentencing Guidelines do not allow for wealth to be taken into
account.160 This practice also sends the message that wealthy people are
above the law in the sense that if they commit a crime, that crime is not as
egregious when an ordinary person commits it.
VI. CONCLUSION
The two theories of punishment maintain that a person should be punished to deter the defendant or others from committing the crime in the future.161 In order to forego being found guilty and being punished accordingly, a defendant is able to proffer reasons they should not be held
culpable for their actions.162 Recently, G. Dick Miller, the psychologist in
the notorious Ethan Couch case, proposed that a person’s wealth can lead
them to “suffer” from a disease called “affluenza.”163 Miller likens affluenza to insanity,164 resulting in a defendant’s inability to appreciate the
wrongful nature of their actions.165 Allowing this defense would influence
a defendant’s sentencing because a defendant’s wealth would be taken into
account, and according to Sentencing Guidelines, wealth is not a factor to
be considered when sentencing a defendant.166 However, a trend has
emerged in today’s society in which people of wealth are given lighter sentences than the average, ordinary citizen.167 By taking into account a de158.
159.
160.
161.
VON HIRSH, KNAPP, & TONRY, supra
note 26, at 16.
Id.
See 18 U.S.C. § 3553 (2012).
BLACK’S LAW DICTIONARY, supra note 7, at 1666; DRESSLER, supra note 6, at 14;
DRESSLER & GARVEY, supra note 6, at 33; MCSHANE, supra note 7, at 5-6.
162.
See generally DRESSLER, supra note 6, at 221-39; DRESSLER & GARVEY, supra
note 6, at 481-512; SMITH, supra note 43, at 7-13; Koehler, supra note 45.
163.
Kensinger, supra note 80; McAuley, supra note 4.
164.
See supra Part II.C.2.
165.
See Kensinger, supra note 80; McAuley, supra note 4.
166.
See 18 U.S.C. § 3553 (2012).
167.
Compare Jones, supra note 4, with CAL. PENAL CODE § 190 (2012), and Martha
Stewart Convicted on All Four Counts, supra note 4; compare Grossberg, supra note 4, with
CAL. VEH. CODE § 23602 (2012), and CAL PENAL CODE § 1203.2 (2012); compare
McAuley, supra note 4, with TEX. PENAL CODE § 49.08 (2012), and TEX. PENAL CODE §
12.33 (2012).
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fendant’s wealth during sentencing, the Equal Protection Clause of the
Fourteenth Amendment168 is violated because the law(s) are not being applied equally to all persons. The Fourteenth Amendment of the United
States Constitution does not distinguish between the rich and the poor; it
applies the law equally to all citizens.169 Sentencing the wealthy and the
non-wealthy differently also contradicts the reasoning and purpose behind
the Sentencing Guidelines, which were promulgated to create uniform sentencing for defendants who have committed the same or similar crimes.170
168.
169.
170.
U.S. CONST. amend. XIV § 1.
Id.
VON HIRSH, KNAPP, & TONRY, supra note 26, at 16.