The Affliction of Judicial Affluenza [Updated]*

I normally don’t post here about high-profile news stories on which I have nothing, really, to add to what has been reported extensively in news stories or argued in opinion pieces in the mainstream media.  So my first inclination when I saw an email from Dan Crawford yesterday suggesting that I post on the affluenza manslaughter-defense news story out of Texas on Thursday, I said to myself, “Nah. Why bother to repeat the obvious.”

But I clicked the link Dan had sent me anyway.  It was to an article on the ThinkProgress website, titled “How A Teen Successfully Used His Wealth As A Defense For Killing Four People,” by Nicole Flatow and Judd Legum, posted there on Thursday.  I already knew how that teen successfully used his wealth as a defense for killing four people.  I already had read a couple of articles about it, so I knew the specifics of the successful argument made to the judge.  And I know enough about the judicial system in this country to recognize that the reason this argument succeeded was not that the teen has affluenza but that the judge does.

It is a common affliction among American judges and justices in many, many American legal jurisdictions, state and federal, and has been at epidemic levels since the Reagan Revolution of the 1980s.  It is, as it turns out, highly contagious, spreading to state courts and from one federal judge to another from various high-profile members of the federal judiciary, most prominently but of course by no means exclusively, the members of the United States Supreme Court.  The latter have effectively limited access to that court to rightwing state attorneys general challenging grants of habeas corpus petitions by the only two federal appellate courts that still grant them (the Ninth Circuit, based in San Francisco, and the Sixth Circuit, based in Cincinnati) and to corporations and very wealthy individuals represented by one of a handful of Washington, D.C.-based Supreme Court “specialists” whose actual specialty is gaining automatic attention initially from the justices’ law clerks and then from the justices themselves.

Those two groups have effectively commandeered the Supreme Court, via its five controlling members, to serve as de facto federal agencies, in that they write executive-branch-agency-like rules defining and sometimes rewriting federal statutes, notwithstanding the absence of statutory language similar to that in statutes creating executive-branch agencies. This is especially prominent–absolutely routine, in fact, and evincing a pathology on the part of at least four justices (Kennedy, Scalia, Alito and Thomas)–in habeas corpus cases** involving state-court prosecutions, one undergirded by a weird, Reagan-era-right constitutional premise that state sovereignty trumps the Supremacy Clause, but only vis-a-vis state judicial branches.  For reasons the Court never explains, this loose-confederation-of-50-sovereigns interpretation of the Supremacy Clause does not apply to those 50 sovereigns’ legislative or executive branches.  (Suffice it to say that legislation invoking select constitutional provisions such as the Second Amendment, the Fifth Amendment’s “takings” clause as applied to real estate, the First Amendment’s speech clause as needed to strike down state campaign-finance statutes, and the Fourteenth Amendment’s equal-protection of upscale white state-college-admissions applicants.)

This privileging of state judiciary branches as the sole embodiment of states’ sovereign (God-given, undoubtedly) right to violate the constitutional rights of unimportant (non-wealthy) individuals is closely aligned with the creation or extension of a bizarre series of Court-created so-called jurisdictional or quasi-jurisdictional state-courts-as-sovereigns doctrines supposedly based upon federalism principles. The first of these doctrines came out of nowhere in the 1970s and began metastasising wildly in the 1980s, first in the Supreme Court and then quickly and crazily in the lower federal courts, utterly uninterrupted for decades by the Supreme Court, in the service of (very) effectively removing constitutional mandates and proscriptions by state courts in civil and criminal litigation of all kinds.

Until that is, decades into this unconstrained malignancy, some mega-corporation that had run headlong into one of these absurd-tautology/uber-procedural-beaurocratization doctrines retains a Supreme Court specialist, for an fee of perhaps $1,000, to splash his or her name on the cover of the petition asking the Court to review the issue.  Which the Court does and then decides unanimously, once in 2005 at the behest of ExxonMobil, and then last week for Sprint, that the challenged doctrine indeed is being routinely misapplied by the lower courts, and writes an opinion that limits the doctrine to the extent necessary to meet the corporation’s immediate needs, leaving a remnant of the doctrine in place until some other mega-corporation needs its reach narrowed further or even eliminated.  Ruth Bader Ginsburg has developed a specialty in needle-threading of this sort.  She must be a descendant of a master seamstress, someone who specialized in pinpoint stitching.  Which may be why she was so enamoured of those fancy counsel monograms on those certiorari petitions.

The opinion last week ruling in favor of Sprint by nearly-completely wiping out a 1971 Court-created doctrine called the “absention” doctrine that, together with the 1983 court-created doctrine at issue in the 2005 opinion, eliminated access to federal court to challenge the constitutionality of anything a state court did, said or held.  Last week’s opinion referenced and reiterated a constitutional principal set forth in a 1989 Supreme Court opinion that foreclosed more than a very narrow use of the 1971 doctrine and prohibited the use of the 1983 doctrine in the rare circumstances when the 1971 doctrine does apply.  For nearly a quarter-century, in other words, as lower federal court after lower federal court spontaneously dismissed cases under one or both of those doctrines, 20 of those years with Ginsburg a justice, the Court turned a blind eye. Until, suddenly Sprint asked that the Court put an end to this.

Back in 2005, Ginsburg noted with apparent dismay in the ExxonMobil opinion that for 22 years the lower courts had been misapplying and outlandishly expanding the doctrine, yet the opinion nonetheless killed only the part of the doctrine needed to give ExxonMobil relief instead of declaring the doctrine dead. I’ve joked on may occasions since then hat we would have to wait until Shell Oil wanted the doctrine dead.  Turns out, Sprint’s need sufficed, to some extent.  No matter, though. The lower courts will continue to ignore the new opinion, just as they ignored for 24 years the 1989 opinion invoked last week in Sprint.

By no means incidentally, the doctrine at issue in the ExxonMobil case began in a 1983 with an opinion by a bare 5-4 majority that purported to interpret not some states’ rights constitutional principle but instead a federal statute concerning federal-court statutory “jurisdiction” to hear certain challenges to the constitutionality of state laws and state-court procedures and rulings.  Three or four years later, at the behest of William Rehnquist, then newly-appointed as chief justice, Congress amended the jurisdictional statute and, in do so, removed the statutory basis for the creation of the doctrine, which, to reiterate, was created as a statutory-interpretation issue, not a constitutional one. No matter; by then the conservative movement juggernaut was well underway thus the morphing of that doctrine into a sovereignty-of-state-courts constitutional fabrication. The cancer spread, unremittingly, for 23 years, to be narrowed only slightly when ExxonMobil’s Supreme Court specialist requested it.***

In  addition to specialist counsel fees, the cost of filing a Supreme Court cert. petition is at least few thousand dollars, usually somewhere in the range of $5,000-$7,000 for ordinary individuals who don’t get cert.-petition-printing-company discounts through their specialists. The Court agrees to hear about 70 cases a per year, in  addition to the several that it decides each term at the request of state attorneys general, without briefing or argument, in its self-appointed role as court-of-error-corrections on the extremely rare occasions when a lower federal appellate court grants a state-defendant habeas petition.  Other than these, seventy cases a year! So these specialists  are mighty special.  And worth every cent of their Court-lobbying fee.

Even so, these constitutionally-mandated-federalism doctrines can serve the purpose of the affluenza-afflicted only when invoked in cases ostensibly concerning interpretation of federal statutes.  Doctrines that claim that states (i.e., state courts) have the constitutional right to violative individuals’ (non-Second-amendment, non-Fifth-Amendment real-estate “takings” clause) constitutional rights provide semantic cover to the justices to avoid, apparently permanently, the problem that the federal statute at issue, even as originally understood by Congress and its signatory president, pushed the permissible envelope of, say, the Constitution’s habeas corpus clause.  These doctrines provide the Court as de facto administrative agency limitless maneuver room to rewrite statutes to flip the Supremacy clause upside-down.  That is, the doctrines enable the justices to avoid the problem that the statutes at issue (unlike those such as the NLRA, EPA, FDA, SEC, IRS, CPSA, and OSHA) do not create separate agencies to draft and administer rules to implement the statute’s language and purpose and do not authorize the Supreme Court or any other court to rewrite the statute to their taste, which is what the Court has aggressively done and continues, unremittingly, to do.

But the states’-as-sovereigns gimmick is not available in another prominent area of Supreme-Court-as-administrative-agency jurisprudence: Statutes (including procedural Rules, which are statutes, albeit enacted through a different process than most statutes) that mega-business interests care an awful lot about, involving civil lawsuits.  There, the Court’s business-proxy majority simply rewrites procedural laws and court-created doctrines as necessary, concerning such matters as the necessary level of specificity of allegations in lawsuit complaints, the limits (lack thereof) of the Federal Arbitration Act, and class action litigation.****

I digress, I realize.  But not as much as you might think.  The ThinkProgress article recounts the particulars of the affluenza case:

On June 15, an intoxicated drive around town by several North Texas teens ended with four dead and at least two others critically injured. The driver, 16-year-old Ethan Couch, stole beer from a Wal-Mart before speeding his pick-up truck with seven passengers down a dark rural road, and ramming into four pedestrians attending to a broken down car.

Prosecutors sought the maximum 20-year sentence for Couch. But after Couch pleaded guilty to intoxication manslaughter, he was sentenced to 10 years probation and no jail time. Instead, he will spend time in a long-term, inpatient rehabilitation center in Southern California, after his father agreed to pay the $450,000-per-year bill. If he violates probation, he could spend ten years in jail. But the sentence is nonetheless a deviation from other recent punishments in Texas for similar crimes, all of which had a smaller death toll.

In the course of Couch’s joy ride, he not only hit the four pedestrians including a youth minister; he also hit another parked car that was then pushed into another moving vehicle. At least two passengers were thrown from his pick-up truck and critically injured; one can’t move or talk. Tarrant County Sheriff Dee Anderson said it was “probably the most difficult accident scene we’ve ever had to work.” Couch’s blood alcohol level was three times the legal limit even for an adult, with both alcohol and Valium in his system.

But Couch’s behavior was explained by psychologist Gary Miller’s testimony as a consequence of an affliction known as “affluenza,” suffered by very wealthy individuals who do not take responsibility for their own actions.

Miller said Couch has a mantra of, “if it feels good, do it,” stemming from a childhood without parental role models or rules. “He never learned that sometimes you don’t get your way,” Miller said. “He had the cars and he had the money. He had freedoms that no young man would be able to handle.”

Presumably, psychologist Miller also could explain the judge’s behavior as consequence of an affliction known as “affluenza,” suffered by people placed in positions of government power by very wealthy individuals who think that very wealthy individuals should not take responsibility for their own actions.  And who themselves believe that very wealthy individuals should not take responsibility for their own actions. Powerful people, especially judges, who believe that non-wealthy individuals should take responsibility for their own actions.  Or should be forced by judges to do so.  And who believe that the cure for a disease characterized by the sufferer’s wealth and his failure to understand that sometimes you don’t get your way, and by a refusal to take responsibility for his or her own actions, is to prove him right.

The difference between the ThinkProgress article and the earlier articles I read about this case is that the former provides this background information:

Intoxication manslaughter is a second-degree felony in Texas, which carries a penalty of no less than 2 years and no more than 20 years in prison. In sentencing, a judge will consider the fact that the defendant is a juvenile, with “diminished culpability and greater prospects for reform.”

Whether or not Couch’s punishment is appropriate under this guidance, the sentence is significantly laxer than others have received in Texas, for similar crimes, or by the same judge.

In July, a 19-year-old who pleaded guilty to intoxication manslaughter in the same county was sentenced to eight years in prison. Cristian Leos’ collision resulted in the death of one person, his cousin and fellow passenger Bonifacio Leos-Castanon. Leos will have to serve six years of his sentence before he is eligible for parole, according to the Star-Telegram.

Other juveniles sentenced by the same judge who presided over Couch’s case, Jean Boyd, saw sentences of ten years for a single punch that killed a stranger and robberies at a Halloween party that led to one injury. And around the state, others sentenced for intoxicated manslaughter have seen sentences of 15 years and five years in prison.

Not everyone has fared as poorly. In 2007, a judge’s daughter convicted of intoxicated manslaughter in Harris County was given just four months in jail and eight months of probation after her family pleaded for leniency.

I am writing this post because of those last three paragraphs.  I responded to Dan’s email yesterday with a message expressing my visceral reaction.  I wrote:

I don’t even know what to say about this.  It speaks for itself. The entire article does–the sentence in that case and the one involving a judge’s daughter, and the other-extreme ones involving the teenage children of ordinary folk.

Judges’ conduct is so in-your-face vile, so routinely, in so many jurisdictions in this country, in both state and federal courts at all levels.  (Although at the highest levels of these court systems, they call them justices, not judges, don’t they?) I’ll try to post something on this tomorrow. Right now I just want to throw up.


How tasteful.  But I warned you; it was my visceral reaction.  Now, a day later, and upon reflection, I reiterate that message, this time publicly.  Including the really strong stuff in the second paragraph.  But I’ll add that this is simply part and parcel of what our Republican Era has wrought.

It is by now, I think, what most Americans now accept as the societal norm.  Similar to what, say, Russian and Chinese citizens accept as societal norms in their own countries, norms based as much upon institutionalized, ingrained intellectual corruption as upon the overt, illegal but routinely accepted, sort of corruption, such as bribery so prevalent in those countries.  Here in this country, it is of a piece with the Tea Party’s fiscal mantra and the capture by the mega-business complex of the legislative branches of government.  Here, judicial-branch ideological and corporate capture is utterly thorough in its permeation into the very core of the judiciary and its lawmaking, yet it almost always escapes public awareness. As these judges and justices and their patrons well know.  And love.


UPDATES: *Several links were inserted, and substantial additions added to the post, on 12/15.

** The Constitution’s Art. I, Sec. 9, includes a provision that states:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.

A hallmark of the Reagan-era conservative legal movement, to which five of the none current Supreme Court justices remain deeply committed, is the conscious decision to allow state courts to ignore that constitutional provision, notwithstanding the Fourteenth Amendment,’s due process clause which expressly requires states states–including state judicial branches–to adhere to federal constitutional provisions.  [Fn. added 12/15 at 3:49 p.m.]

*** Paragraph added 12/15 at 4:26 p.m.  I italicized it because it’s incredibly important and should have been included initially.

****The links in this paragraph are to the single dissenting opinion on behalf of the four dissenters in each of these cases.  These dissenting opinions are written in a manner that explains in lay terms the issue in the case, the overt rewriting by the majority of the critical statute, and the obvious and intended effect of the majority’s ruling.