Posted on December 13, 2013 in Uncategorized

A sixteen-year-old kid gets a bunch of buddies in his truck. They steal a couple cases of beer and go speeding down a dark road with lots of blind corners.

Suppose that he gets pulled over at mile marker 20 and is taken into custody for DWI. It's his first brush with the law. Should he go to prison?

I suspect that the answer is "no." Prison is gross overkill for a sixteen-year-old's first DWI. We expect sixteen-year-olds to do stupid things, and we don't toss kids in prison for being kids. Juvenile court is about the need for supervision; driving drunk indicates a need for supervision, but not for warehousing. The kid on probation can be guided to make better choices and can be taught to work to make the world a better place. Meanwhile, there's a sword hanging over his neck: if he violates the probation, he can be sentenced to custody. Prison is for people we are afraid of. Probation is for people we are mad at. Prison is a school for crime. Send a sixteen-year-old to prison, and you're creating a lifelong criminal.

Suppose now that, instead of getting pulled over at mile marker 20, the same kid runs over and kills four people (one of them had run off the road; the other three had stopped to help) at mile marker 21.

Prison? Your answer might be different. Why? The kid made all the same choices and took all the same actions in both; it was just misfortune that put the pedestrians in the path of his bad decisions in the second scenario. The only difference between the two scenarios is the rotten luck, outside the kid's control, in the second.

"Affluenza" has been in the news lately, because of this case in which a psychologist purportedly argued that the kid in the second scenario should not go to prison because children from richer families "have a sense of entitlement, are irresponsible, make excuses for poor behavior, and sometimes dabble in drugs and alcohol."

The judge put the kid on probation. The aptly named psychologist Gary Buffone, who will not only give opinions in his own field without all the facts, but will do so in other fields as well, opined:

"Essentially what he (the judge) has done is slapped this child on the wrist for what is obviously a very serious offense which he would be responsible for in any other situation.... The defense is laughable, the disposition is horrifying...not only haven't the parents set any consequences, but it's being reinforced by the judge's actions."

I don't know that affluenza was actually a factor in sentencing. But I doubt it. It's a blatantly silly argument-an advantaged upbringing is an aggravating factor, not a mitigating factor-which is why people are talking about it. I suspect that the judge rolled his eyes at the affluenza defense, but found other reasons not to send the kid to prison. (Perhaps Richard Alpert, who tried the case for the State, will weigh in.)

People like to be shocked and outraged. "Judge gives probation because of affluenza" is more shocking and outrageous than "defendant argues affluenza and judge gives probation anyway." If someone were to write about the reasons a judge might give someone-rich or poor, young or old-probation for an offense that took four lives but, were it not for four families' rotten luck, would have been a misdemeanor, nobody would even read that, would they?

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