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ECKENROTH FINAL 4/29/2015 2:34 PM 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). 443 ECKENROTH FINAL 444 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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. ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 445 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. ECKENROTH FINAL 446 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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 ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 447 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). ECKENROTH FINAL 448 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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 ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 1. 449 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. ECKENROTH FINAL 450 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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). ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 451 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). ECKENROTH FINAL 452 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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). ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 453 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), ECKENROTH FINAL 454 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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/. ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 455 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). ECKENROTH FINAL 456 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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. ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 457 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. ECKENROTH FINAL 458 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 “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), ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 459 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. ECKENROTH FINAL 460 4/29/2015 2:34 PM CRIMINAL AND CIVIL CONFINEMENT Vol. 41:443 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). ECKENROTH FINAL 2015 4/29/2015 2:34 PM WEALTHY “JUSTICE” 461 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.