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Affluenza Epidemic Rampant in Our Nation’s Criminal Justice System

by Gary Hunter

Af-flu-en-za /n. <L. affluentia, see AFFLUENCE + <LL. Influens, see INFLUENCE/: an acute and infectious disease caused by greed and favoritism in the judicial system and characterized by preferential treatment and lenient sentences for wealthy offenders.

 Following his testimony in the criminal prosecution of Ethan Couch, a Texas teenager who killed four people and injured two others while driving drunk, psychologist G. Dick Miller said, “I wish I hadn’t used that term. Everyone seems to have clipped onto it. We used to call these people spoiled brats.”s corruptive as cancer and more lethal than leukemia, affluenza rots the very fabric of our nation’s judicial system. Its victims number in the millions each year while courts, prosecutors and corrections officials help to fuel the festering malady. We have entered into an era that one journalist has called the “total moral surrender” of our criminal justice system, also known as the age of affluenza.

Couch was initially sentenced to probation, resulting in an eruption of public outrage. But that outrage is overshadowed by other examples where the wealthy have committed crimes and escaped serious punishment, as well as rampant, unrestrained corruption on the corporate level that likewise results in few consequences while poor people receive lengthy prison terms for minor offenses.

Former Securities and Exchange Commission (SEC) attorney James Kidney made a provocative and candid speech at his retirement party in 2014. He said his supervisors were too “tentative and fearful” to hold Wall Street accountable for the financial fiasco in 2008 that led to the Great Recession. He called the SEC “an agency that polices the broken windows on the street level and rarely goes to the penthouse floors.”

Matt Taibbi is an award-winning journalist and author. In an interview with Democracy Now! he related the story of a New York bus driver named Andrew who was arrested for “obstructing pedestrian traffic” because he was standing in front of his home at 1:30 in the morning. Even though Andrew hired an attorney to defend him, he “literally could not convince his own lawyer that he was innocent.” Only after protracted proceedings did the judge think to ask the policeman if anyone on the street was actually being obstructed. As soon as the officer responded the case was dismissed. According to Taibbi’s research, that was typical justice for the average defendant, while someone who was affluent likely wouldn’t have been arrested in the first place for standing in front of their mansion.

This socio-economic disparity is an indication that we have the best criminal justice system money can buy.

Four Dead, Sentenced to Probation

In June 2013, while driving under the influence, 16-year-old Ethan Anthony Couch plowed into Holly Boyles, her daughter Shelby, Breanna Mitchell and youth pastor Brian Jennings, killing all four as they were parked on the side of the road. Couch then struck two more parked cars, slid across the street and slammed into an oncoming vehicle.

Two teenagers who were riding in the bed of Couch’s pickup truck were ejected during the crash. One suffered severe brain trauma and can no longer walk or talk; the other had internal injuries and numerous broken bones. Three hours after the wreck, Couch still had a blood alcohol level of 0.24 – three times the legal limit.

In a unique approach, attorneys argued that Couch, who came from a wealthy family, was a victim of what psychologist G. Dick Miller, an expert for the defense, called “affluenza” – a term not found in any medical journal. Miller stated that Couch should not be held responsible for his actions because he was never disciplined by his rich parents for his reckless behavior.

On the night of the fatal accident, surveillance cameras caught Couch stealing beer from a local Wal-Mart before going to a party. The wreck occurred around three hours later. Basically, the defense contended that Couch had not been taught that the rules applied to him, thus he should not be held criminally responsive for the deaths and injuries he caused. Prosecutors sought a 20-year prison term for four counts of manslaughter.

On February 5, 2014, Couch was sentenced to complete a rehab program at a residential treatment facility. Even before the sentencing hearing, it was determined that he would receive a sentence of 10 years’ probation. A firestorm erupted over the lenient sentence, and the defense’s description of Couch as the product of privileged and irresponsible parents who let him do whatever he wanted without discipline made the term “affluenza” a household word.

State District Judge Jean Boyd, who presided over the case, said the affluenza defense was “not a basis for her decision” to sentence Couch to probation and treatment.

Defense attorney Scott Brown defended Boyd’s decision. “There is nothing the judge could have done to lessen the suffering of any of those families. [She] fashioned a sentence that is going to keep Ethan under the thumb of the justice system for the next 10 years. And if Ethan doesn’t do what he’s supposed to do, if he has one misstep at all, then this judge, or an adult judge when he’s transferred, can then incarcerate him.”

Another attorney who represented Couch, Reagan Wynn, agreed. “She [the judge] heard all the evidence and made what she thought was the appropriate disposition,” he said.

But in the minds of many average citizens, Couch’s paltry sentence merely shifted the anger over his affluenza defense from his attorneys and parents to the criminal justice system that permitted such a lenient punishment.

 “Let’s face it.... There needs to be some justice here,” said Eric Boyles, whose wife and daughter were killed by Couch. “There are absolutely no consequences for what occurred that day.”

Suniya Luthar, a psychology professor at Arizona State University, asked, “if you have a child who grew up in the inner city, and the parents abused crack, and [the child] was abused all along and grew up at the age of 16 and ran over four people, how likely is it that public or culture would say, ‘you must understand, what the child did was a result of his upbringing’? It’s hard to justify such vastly different approaches taken toward inner-city children versus those in affluence.”

However, Boyles noted that “had [Couch] not had money to have the defense there, to also have the experts testify, and also offered to pay for the treatment, I think the results would have been different.”

To add insult to injury, the court also held that Couch’s parents only had to pay a small amount of the cost for their son’s rehab treatment. The pricey treatment center at the North Texas State Hospital usually costs $20,000 a month, but the Couches had to pay only $1,170 per month. Judge Boyd decided the state would pay the balance, amounting to over $150,000.

The families of three of Couch’s victims settled lawsuits against him in 2014 for undisclosed amounts. Another suit, filed on behalf of Sergio Molina, one of the passengers in Couch’s truck who was left unable to speak or move, resulted in a $2 million settlement in May 2014.

Sometimes the only justice that victims receive from wealthy defendants is financial compensation, rather than seeing them go to prison to face the consequences of their actions.

Rich Defendant Rapes Child, Receives Probation

After admitting that he had molested his three-year-old daughter, Robert H. Richards IV was sentenced to probation in 2009 by a Delaware superior court judge who reasoned that Richards would “not fare well” in prison. Wrapped in a veil of secrecy, Richard’s case did not become public until March 2014 when his ex-wife, Tracy, filed a civil lawsuit seeking damages. In the suit she accused Richards of digitally penetrating his daughter while masturbating.

According to New Castle County police detective JoAnna Burton, Richards’ daughter later told her grandmother that she didn’t want “my daddy touching me anymore.” When Richards was confronted by his wife he reportedly admitted his guilt, saying “it was an accident and he would never do it again.”

Richards was arrested, charged with two counts of second-degree rape of a child and released on $60,000 bond. Second-degree rape is a class B violent felony that carries a mandatory prison sentence of 10 years for each count. Just before trial, however, prosecutor Renee Hrivnak dropped the charges to one count of fourth-degree rape, which carries no mandatory term of incarceration.

Richards pleaded guilty and received eight years in prison. Superior Court Judge Jan R. Jurden then suspended the sentence, citing mitigating factors and “strong family support” as justification for granting probation, in addition to the comment that Richards would “not fare well” behind bars. His “treatment needs exceed the need for punishment,” Jurden stated.

“It’s an extremely rare circumstance that prison serves the inmate well,” observed Delaware Public Defender Brendan J. O’Neill. “Prison is to punish and to segregate the offender from society, and the notion that prison serves people well hasn’t proven true in most circumstances.”

Attorney Michael W. Modica agreed, stating, “I’ve never heard of the judge saying in general that [a defendant] is not going to do well. Who thrives in jail?” Modica said he had represented numerous sex offenders and seen treatment offered to defendants in child porn cases, but never heard a judge offer treatment for a hands-on sex crime.

Others also expressed concerns with the court’s reasoning, noting that treatment is usually reserved for drug addicts, not child rapists.

Defense attorney Joseph A. Hurley agreed with the court’s decision but for a very different reason. “Sex offenders are the lowest of the low in prison,” he said, adding that Richards, then 48 years old, was a “rich, white boy who is a wuss and child perv. The prison can’t protect him, and [judge] Jan Jurden knows that reality. She is right on.”

Richards, who stands 6”4’ and weighs over 250 pounds, is the grandson of Irenee du Pont – the patriarch of the du Pont family, which made its fortune in the chemical industry. He resides in a 5,800-square-foot mansion and owns a home in an elite North Shores neighborhood. Both residences are courtesy of his family trust fund.

Richards was required to attend weekly probation meetings for eight months, after which the court reduced his supervision level to monthly visits. Although also ordered to receive sex offender treatment at a mental health facility in Boston, he reportedly did not attend the treatment program.

Needless to say, very few child rapists who can’t afford to make $60,000 bond and hire private defense counsel receive suspended sentences, whether or not they would do well in prison or have “strong family support.”

Apparently it helps when such support comes from an extremely wealthy family like the du Ponts. The civil suit filed against Richards by his wife resulted in an undisclosed settlement, with the court holding a closed hearing to approve the agreement in July 2014.

Epstein Evades Federal Charges

It took a federal court to force the state of Florida to divulge whether Palm Beach multi-millionaire Jeffrey Epstein used his wealth and influence to obtain a favorable plea bargain for having sex with two underage girls. On April 18, 2014, the Eleventh Circuit Court of Appeals held that hidden negotiations in Epstein’s 2007 plea agreement violated the Crime Victims’ Rights Act, 18 U.S.C. § 3771, and ordered the disclosure of correspondence between Epstein’s attorneys and federal prosecutors. See: Doe v. United States, 749 F.3d 999 (11th Cir. 2014). Lawyers representing Epstein’s victims are trying to determine if he was allowed to plead guilty to a more lenient state charge to avoid federal prosecution.

Paul Cassell, an attorney for the two victims, said, “we’re trying to figure out if Epstein used his political connections and great wealth to secure this kind of arrangement, that was unheard of, frankly, if you look at these charges.”

Epstein, a money management tycoon, controls numerous hedge funds and owns valuable properties in Manhattan, New Mexico, and Paris, as well as a mansion in Palm Beach and his own island in the Caribbean. He associated with such high-powered figures as Bill Clinton, Donald Trump, Prince Andrew and others. His attorneys have included Alan Dershowitz and former U.S. Solicitor General Kenneth Starr.

The FBI “began investigating allegations that [in 2006] Jeffrey Epstein had sexually abused several minor girls.” According to the Eleventh Circuit, “Not only did the United States neglect to confer with the victims before it entered into the agreement with Epstein, it also failed to notify them of its existence for at least nine months.”

As a result, Epstein was allowed to plead guilty to a lesser state charge of procuring a person under the age of 18 for prostitution, and the federal charges were dropped. He served just over a year at the Palm Beach County Jail on an 18-month prison sentence, then another year on house arrest following his release in July 2009. According to media reports, he settled civil claims involving around two dozen underage victims who claimed that he paid them for sexual massages at his Palm Beach mansion. Some were as young as 14 years old. [See: PLN, July 2010, p.1].

Martin Weinberger, one of Epstein’s attorneys, insisted that the federal plea bargain was “reached in good faith,” and worried that the appellate ruling would prevent defense counsel and prosecutors from being able to work out deals confidentially.

The original charges filed by the U.S. Attorney’s office included a 53-page sealed indictment that alleged Epstein had molested numerous underage girls. According to the indictment, many of the girls were transported from South America, Europe and the former Soviet Republic on Epstein’s private jet. That alone would have made him guilty of sex trafficking – a more serious charge that could have netted him up to 20 years in federal prison.

Another lawsuit was filed against Epstein by one of his victims on January 26, 2017. According to that complaint, Epstein was “known as a billionaire who uses his extraordinary wealth to commit illegal sexual crimes in violation of federal and state statutes and to employ numerous others ... to conspire and assist in committing those crimes and additional torts as well as to protect and conceal his crimes and torts from being discovered.” His young victims were allegedly promised “money, shelter, transportation, employment, admission into educational institutions, educational tuition, and other things of value in exchange for sex.”

That lawsuit, and other claims against Epstein over his sexual exploitation of underage girls, remain pending. See: Doe v. Epstein, U.S.D.C. (S.D. NY), Case No. 1:17-cv-00616-JGK.

According to a stipulation made by his attorneys, Epstein’s net worth “is in excess of nine figures” – which makes him the wealthiest registered sex offender in the U.S. He resides in the Virgin Islands, where he owns a small island called Little St. James.

The Wealthy and Vehicle Crimes: An Easy Ride

Martin Joel Erzinger, a wealthy advisor with Morgan Stanley, a financial services firm, hit a cyclist from behind in his Mercedes in Eagle, Colorado and fled the scene. The victim, Dr. Steven Milo, suffered serious injuries as a result of the July 3, 2010 incident, including spinal damage and bleeding in his brain. Erzinger, then 52, was later arrested and charged.

His defense, provided by forensic experts hired by Erzinger, was that the smell of his new Mercedes Benz had adversely affected him, or that he had sleep apnea which caused him to lose consciousness. Prosecutors agreed to drop the felony charge and instead proceed with two misdemeanors, over Dr. Milo’s objections.

According to the Denver Post, Eagle County District Attorney Mark Hurlbert “expressed concern that Erzinger might lose his job” if he was convicted of a felony. Erzinger pleaded guilty to the misdemeanors and received a 90-day jail sentence, which was suspended with community service work, plus one year of probation during which he could not drive.

“Mr. Erzinger struck me, fled and left me for dead on the highway,” Dr. Milo stated in a letter to the prosecutor. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”

In California, 18-year-old Luicci Nader wrecked his Ferrari while speeding on December 24, 2009; his cousin, Ralph Abinader, died in the accident and two other people were injured. Three years later, Nader pleaded guilty to a felony charge of vehicular manslaughter. His family reportedly spent over $1 million on his defense, including automotive experts. He was sentenced in January 2012 to one year in jail and five years’ probation, and ordered to perform 1,000 hours of community service.

In late December 2013, a drunk Shaun Goodman drove his Ferrari F360 at speeds of nearly 100 mph as he tried to evade police in Olympia, Washington. A passenger opened the car door and jumped to safety before Goodman careened into two vehicles, jumped a curb and crashed into a house. His blood alcohol level was twice the legal limit and it was his seventh DUI.

Washington state’s sentencing guidelines for a DUI offender with a blood alcohol level of more than .15 and three prior offenses require a minimum of 120 days in jail.

Goodman pleaded guilty to felony charges of evading arrest and driving under the influence. He received a year of work release, during which he works during the day and reports to the Thurston County jail at night.

Not only did he not receive a full-time jail sentence, but a month after his arrest the judge granted his request to fly to New Jersey to attend the Super Bowl.

Olympia residents were outraged over Goodman’s lenient punishment, and on May 16, 2014, about 25 people gathered in front of the courthouse to protest.

“The judge has said at some point that he’s an important businessman in the community, and it wouldn’t be fair for him [and] his employees would suffer if he went to real jail,” said Sam Miller, one of the demonstrators. “It’s not fair that there’s a two-tiered legal system, one for those with money and another for those without.”

And in a case involving a multi-billion-dollar car manufacturer, on May 16, 2014, federal regulators fined General Motors $35 million for failing to timely recall 2.6 million vehicles with defective ignition switches. Those defects disabled the cars’ airbags and were responsible for at least 42 accidents and the deaths of 13 people. [See: PLN, April 2017, p.36].

“They had information and they didn’t tell anyone.... Crashes happened and people died,” U.S. Transportation Secretary Anthony Foxx said of the company’s executives. “Had GM acted differently, maybe some of this tragedy would have been averted.”

David Friedman, administrator of the National Highway Traffic Safety Administration, said it was “very clear” that everyone at General Motors knew the switches were defective, “all the way up to executives.” The company was reportedly aware of the problem as early as 2004.

The $35 million civil penalty was the largest ever levied by the U.S. Department of Transportation, and GM subsequently agreed to settle criminal charges by paying a $900 million fine in September 2015.

 “It will put all automakers on notice that there will be zero tolerance” for ignoring safety problems with their vehicles, said Foxx. However, no corporate executives went to prison even though 13 people died due to the ignition switch defect and attempted cover-up. Also consider that GM made $2.8 billion in net profit in 2014 and $9.7 billion in 2015, far exceeding the financial penalties it agreed to pay.

“Unfortunately, it’s the same old story,” said Georgia attorney Lance Cooper, who discovered the ignition switch problem while representing a victim in a lawsuit against GM. “If you have enough power and money, you can always buy your way out of truly being held accountable.”

Banks Too Big to Jail

Matt Taibbi explained in his book The Divide: American Injustice in the Age of the Wealth Gap that the criminal justice affliction now known as affluenza originated on the corporate level due to actions taken by U.S. Attorney General Eric Holder almost two decades ago. In an interview with Truth-Out, Taibbi discussed “the incestuous” regulatory community that oversees major financial corporations, or what Holder referred to as “banks too big to jail.” Holder’s reasoning was that taking down a large financial institution could have a negative impact on the national economy or even worldwide.

 “There was an SEC Commissioner who talked about ‘shot selection,’ like in basketball, [and] how you should go for the baskets with the greatest chance of scoring,” Taibbi explained. “So while it may be more satisfying to go after the bigger companies, you’re more likely to get a successful action against a smaller company.”

Holder, who was a deputy attorney general during the Clinton administration, penned a memo outlining a “get tough on crime” approach to prosecution. At the bottom of the memo he mentioned a policy called “collateral consequences,” related to the criminal prosecution of large corporations that employ many people. He suggested that it was more equitable to levy fines as part of deferred prosecution agreements, which would keep innocent employees from losing their jobs should companies go out of business due to criminal acts committed by their executives. The policy has actually amounted to corporate payoffs to the federal government in exchange for executives going free. There is no comparable “collateral consequences” policy for individual, typically poor, defendants. [See: PLN, July 2013, p.40].

Once Holder became the U.S. Attorney General under President Obama, Taibbi said the softer approach to corporate crime became official policy on the federal level. He also noted that “the administration’s come out and overtly talked about collateral consequences and talked about [how] it can’t go against [banks] like HSBC and UBS because they’re worried about what the impact might be on the world economy.”

Hongkong and Shanghai Banking Corporation (HSBC) is a multinational financial services company and a subsidiary of London-based HSBC Holdings PLC, one of the world’s largest banking firms. Holder testified before Congress that HSBC was too large to prosecute even though top executives had been caught illegally laundering billions of dollars for Iran, Libya and some of the world’s most ruthless drug cartels. While the bank eventually paid a fine of $1.9 billion, no executives went to prison. [See: PLN, Sept. 2015, p.22].

Between 1998 and 2005, financial fraudster Bernie Madoff used JPMorgan Chase bank to launder $76 billion in his long-running Ponzi scheme. Chase officials did nothing to stop him; when Madoff’s crimes eventually came to light, those same officials denied any knowledge of what was happening. But on January 7, 2014, the bank agreed to pay $2 billion in fines to the federal government as part of a two-year deferred prosecution. Chase also paid $543 million to the trustee appointed to disburse Madoff’s remaining assets. A lawsuit filed against Chase by investors who were defrauded in the Ponzi scheme was dismissed in May 2016.

Some believe that bank executives at the highest level were complicit in the Madoff scandal, and there was evidence that Chase took steps to reduce its financial risk related to Madoff’s accounts without informing federal regulators of its concerns.

“JPMorgan failed to carry out its legal obligations while Bernard Madoff built his massive house of cards,” said FBI official George Venizelos.

Madoff was convicted in June 2009 and is currently serving a 150-year sentence; his prosecution was the exception that proves the rule that very wealthy offenders rarely receive significant prison time. Due to his fraudulent financial schemes, one of the major funders of criminal justice reform efforts in the United States, the JEHT Foundation, lost its investments and closed its doors. [See: PLN, June 2009, p.34].

Some may say that justice was served when Chase paid a $2 billion fine. But that is paltry consolation to the thousands of people who lost their savings and retirement funds due to Madoff’s fraudulent schemes, which were facilitated by the bank.

“JP Morgan as an institution failed, and failed miserably,” said then-Manhattan U.S. Attorney Preet Bharara. “In part because of that failure, for decades Madoff was able to launder billions of dollars in Ponzi proceeds through a single set of accounts at JP Morgan.”

Another financial institution that’s apparently too big to jail is Credit Suisse. On May 19, 2014 the bank pleaded guilty to felony charges for helping U.S. citizens hide their money in an effort to avoid taxes. The plea deal was an anomaly for large banking firms.

After rebukes from federal prosecutors and the Federal Reserve, Credit Suisse officials agreed to pay $2.6 billion in penalties. They also agreed to hire an independent monitor to scrutinize their activities for the next two years. The bank itself seemed content with the fine and its slightly-tarnished reputation, as none of its executives went to prison. In exchange for pleading guilty, the Securities and Exchange Commission voted to allow Credit Suisse to retain its investment-advisor license, which it otherwise would have had to relinquish.

Apparently the bank didn’t learn much from that prosecution, though, as it agreed to pay another $5.28 billion in an unrelated case in December 2016, involving mortgage-related violations.

“Credit Suisse made false and irresponsible representations about residential mortgage-backed securities, which resulted in the loss of billions of dollars of wealth and took a painful toll on the lives of ordinary Americans,” stated then-Attorney General Loretta Lynch. “Under the terms of this settlement, Credit Suisse will pay $2.48 billion as a fine for its conduct. And Credit Suisse has pledged $2.8 billion in relief to struggling homeowners, borrowers, and communities affected by the bank’s lending practices. These sums reflect the huge breach of public trust committed by financial institutions like Credit Suisse.”

A federal lawsuit naming the Countrywide unit of Bank of America (BOA) related to mortgage fraud resulted in a $1.27 billion judgment against the bank in July 2014, following a jury trial. Separately, BOA settled SEC actions against three executives and no criminal charges were filed. The civil suit, brought as a qui tam whistleblower action, was prosecuted by the U.S. Attorney’s Office. One former bank officer, Rebecca Mairone, was ordered to personally pay $1 million.

BOA also settled with federal prosecutors in August 2014, agreeing to pay $16.6 billion for selling toxic mortgage-backed securities. However, the $1.27 billion judgment in the civil case was overturned by the Second Circuit Court of Appeals on May 23, 2016. “The trial evidence fails to demonstrate the contemporaneous fraudulent intent necessary to prove a scheme to defraud through contractual promises,” the appellate court wrote. See: United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 822 F.3d 650 (2d Cir. 2016).

Additionally, for six years, from January 2006 to March 2012, SunTrust issued toxic mortgages that resulted in massive losses to the Federal Housing Administration. On June 17, 2014, SunTrust Banks, Inc. agreed to pay state and federal agencies almost $1 billion in fines. Like Credit Suisse and BOA, SunTrust was one of many banks investigated for issuing home loans and mortgages to borrowers with troubled credit.

Yet once again, no bank executives or officers went to jail.

Pay to Stay in Better Jails

Even when the wealthy do have to serve time, they can sometimes pay for upgraded carceral accommodations. In July 2010, Prison Legal News ran a cover story titled “Celebrity Justice: Prison Lifestyles of the Rich and Famous,” which mentioned that well-off defendants in California could opt to stay in safer jails with better living conditions – for a price.

That practice hasn’t changed. In March 2017, news articles reported that various city jails in Los Angeles and Orange counties were still offering “upgraded” stays for affluent prisoners who could afford to pay fees averaging around $75 to $120 per day.

The jail in Seal Beach, for example, includes such amenities as flat-screen televisions, new beds and a computer room. Others provide refrigerators and phones, or allow prisoners to wear their own clothes and purchase their own food. Dozens of local facilities in Southern California have similar programs, including in Glendale, Hawthorne and Santa Ana, plus one in Fremont in the central part of the state. Eight have work furlough programs that allow prisoners to work during the day.

Not that such cushy jail stays are limited to California residents; wealthy defendants from other states, including Arizona, Montana and Iowa, have paid to do time under better conditions in Los Angeles and Orange county jails. While most of the jail stays are short, they can extend up to a year.

An investigative news report by The Marshall Project and the Los Angeles Times found that over 3,500 prisoners had participated in pay-to-stay jails from 2011 to 2015. Some were convicted of serious crimes, including felonies, such as robbery, child sexual abuse, possession of child pornography and assault, though most involved DUI and other traffic offenses. During that time period, pay-to-stay jail fees totaled almost $7 million.

“The whole criminal justice system is becoming more and more about: How much money do you have? Can you afford better attorneys? Can you afford to pay for a nicer place to stay?” said LAPD detective John Eum.

Poor offenders who are unable to afford better jail accommodations usually end up in the overcrowded county systems, which have been plagued with violence by both prisoners and staff members. [See, e.g.: PLN, May 2013, p.50; March 2013, p.1].

Luicci Nader, the defendant who crashed his Ferrari and pleaded guilty to vehicular manslaughter for the death of his cousin, ended up serving six months at Seal Beach’s jail at a cost of $18,000.

“I did my sentence in pay-to-stay because, first of all, my parents had the money. I come from a wealthy family, and we figured this would be easier on them – and on me, of course,” he told The Marshall Project.

“There was a small yard, and we used to play basketball sometimes,” he added. “There was also a TV room and a DVD library, and we would watch ‘Friends,’ ‘Prison Break,’ other shows. I would talk on the phone with my parents everyday. We never had conflict over access to the phone because there weren’t that many people. My dad paid over $6,000 for phone calls over the period I was there.”

But apparently Nader’s stint at a cushy jail didn’t teach him the intended lesson – that incarceration is something to be avoided.

“[I]f I had to do it again, I wouldn’t go to Seal Beach’s jail – I hear there are other pay-to-stay jails that are more lenient,” he said.

Some jail officials have defended pay-to-stay programs as being a better option for elderly and disabled offenders, or those convicted of crimes that would make them a target for violence in the county system. That argument fails, however, because poor prisoners who are elderly, disabled or otherwise vulnerable don’t get to stay at the city jails with better conditions and amenities – only those who can afford to pay the fees.

No Happy Ending for Affluenza Teen

Ethan Couch’s case, which added “affluenza” to the public lexicon, did not have a happy ending after he received probation for killing four people while driving drunk.

In December 2015, a video surfaced that showed Couch at a party where alcohol was present. Since abstaining from drinking (as well as driving and drug use) was among the terms of his community supervision, the video raised the possibility that his probation would be revoked, sending him to state prison.

Unwilling to risk that possibility, since he was unlikely to fare well behind bars, Couch missed a meeting with his probation officer and then disappeared along with his mother, Tonya – resulting in extensive media coverage, an arrest warrant issued by the U.S. Marshals Service and a nationwide manhunt.

“It was a local, tragic story until that defense expert used the word ‘affluenza.’ That just hit a nerve and it went national. I really haven’t seen anything like it,” said former Dallas County prosecutor Toby Shook.

The search didn’t last long, as Couch, now 18 years old, and his mother were quickly located in the Mexican resort town of Puerto Vallarta, reportedly after they used one of their phones to order pizza. Both were extradited to Texas in January 2016, where Tonya was charged with hindering the apprehension of a felon and ordered to undergo a mental evaluation. She was released on $75,000 bond. On February 5, 2016, the Tarrant County Sheriff’s Office announced that Ethan Couch had been moved from a juvenile facility to an adult jail as he had turned 19, pending a probation violation hearing.

The case was transferred to adult court, and in May 2016 Couch was ordered to serve 720 days – almost two years – in jail, consisting of 180 days for each of his four charges of intoxication manslaughter. Following his release he will again be placed on probation.

Couch’s attorneys appealed that decision, arguing the judge lacked jurisdiction, but on February 2, 2017 the appeal was denied by the 2nd Court of Appeals. See: In re Couch, 2017 Tex. App. LEXIS 940 (Tex. App. Fort Worth 2017). An appeal was filed with the Texas Supreme Court, which was denied on April 13, 2017.

Thus, Couch will have to serve out the remainder of his 720-day sentence at the Tarrant County Correction Center, where he is reportedly being held in protective custody, before being released on probation – still a light punishment for killing four people and seriously injuring several others while driving drunk.

Conclusion

On February 2, 2016, U.S. Senator Elizabeth Warren railed against lenient treatment for wealthy offenders when commenting on federal legislation that would make it more difficult to prosecute bank fraud and other corporate crimes.

“There are two legal systems,” she remarked, “one for the rich and powerful, and one for everyone else.”

Addressing the adverse effects of affluenza, she added, “It’s not equal justice when a kid gets thrown in jail for stealing a car, while a CEO gets a huge raise when his company steals billions,” and “It’s not equal justice when someone hooked on opioids gets locked up for buying pills on the street, but bank executives get off scot-free for laundering nearly a billion dollars of drug cartel money.”

Warren’s office cited 20 cases in which companies had paid fines to settle federal criminal prosecutions. In only one of those cases did a corporate official go to prison: Don Blankenship, the former CEO of Massey Energy. In April 2010, an explosion occurred at a West Virginia mine operated by Massey Energy, and 29 miners died. The mine had repeatedly been cited for safety violations. Blankenship, 67, was convicted of a misdemeanor charge of conspiring to violate mine safety rules, and sentenced in 2016 to a year in prison, one year of supervised release and a $250,000 fine. [See: PLN, Nov. 2016, p.61].

He was released from a halfway house in May 2017, has consistently refused to accept responsibility and continues to appeal his conviction.

“He’ll be doing the same thing he’s done before. Just give it a little bit of time,” said Tommy David, who lost three family members in the mine explosion, including his son and brother. “He’ll be back to his same old ways. He ain’t going to change. That man ain’t out for nothing but money. He has disregarded safety. He don’t care – he just wants that money.”

You will not find the term “affluenza” in any medical journal. It is not recognized by the American Psychiatric Association. But there is no question that this malady has infected our criminal justice system and allowed affluent offenders to operate with impunity. The rich rape and steal and kill and receive probation instead of prison. Bankers bilk billions of dollars from the public and pay with fines instead of their freedom. Affluenza tips the scales of justice at every level – and there is no apparent cure.

The wealthy already have significant advantages when traversing the criminal justice system. They can afford to make bond rather than sit in jail for months or even years awaiting trial. They can hire private defense attorneys, their own investigators, expert witnesses and even jury consultants. They often have wealthy or influential friends who are willing to act as character witnesses and provide letters of support for lenient sentences. They can pay court costs, restitution and other fees that pose a major burden for poor defendants. And they can sometimes pay to stay in safer jails with better conditions when they do have to serve time. In our nation’s judicial system, you truly get as much justice as you can afford.

The bottom line is that the term “affluenza” is a new way to describe the age-old practice of providing preferential treatment to the wealthy and powerful who commit crimes – a practice that has existed for hundreds if not thousands of years.  

 

Sources: www.delawareonline.com, www.latimes.com, http://truth-out.org, Huffington Post, www.dailybusinessreview.com, www.politix.topix.com, www.forbes.com, www.politico.com, www.washingtonpost.com, http://thinkprogress.org, www.csmonitor.com, www.alternet.org, www.reuters.com, The New York Times, www.cnbc.com, www.justice.gov, Los Angeles Times, Pittsburgh Post-Gazette, Inside Edition, CNN, www.nationallawjournal.com, Bloomberg, www.dallasnews.com, www.dailykos.com, www.dallasobserver.com, www.themarshallproject.org, www.ocregister.com


 

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