Interesting Debate on Affluence and Justice (2/19/14)

With the brouhaha surrounding the sentencing in offshore account cases generally and in Ty Warner's case specifically,  I thought that this New York Times Opinion Page Room for Debate is time.  The debate is titled is "Sentencing and the ‘Affluenza’ Factor" and the topic is "To what extent should life circumstances affect sentencing in criminal cases?"  The debates may be viewed here.

The context for the debate, of course, is not offshore account case sentencing.  Not even Ty Warner would draw this type of interest from NYT (or be interesting to NYT readers, two sides of the same coin).  Rather the debate is occasioned by a case that drew national attention.  Here is the lead in to the debates:

This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence. A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing. 

The case has angered many who have said that a poor person would have been imprisoned, without the same considerations. To what extent should life circumstances affect sentencing?

While this debate is a larger one, it certainly is one that plays out in the offshore account cases and, in some sense, in tax sentencing cases generally.

Some interesting excerpts (the ones that I thought might whet the readers' appetite to read more):

By Alan Dershowitz (law professor and general troublemaker (that's a term of affection for him)):

The debate persists as both poor and wealthy attribute their crimes to the burdens of their circumstance. The indigent criminal has too few options; the affluent too many. 

* * * * 

 If the poor and the rich want to be deemed equal before the law, we have the right to demand that they equally obey the law, even if the pressures to do so may vary from individual to individual.

Timothy K. Lewis (Judge, Third Circuit Court of Appeals)

The “affluenza” case demonstrates that we have much work to do to eliminate disparity from our justice system. How can a person convicted of vehicular homicide escape harsh punishment because he was too privileged to know better while the life circumstances of the poor, who make up the vast majority of our prison population, are irrelevant?

Marc Mauer (The Sentencing Project)

We all stand to gain by having judges consider life circumstances in sentencing, but right now this is a privilege largely for the wealthy. The doctor convicted of Medicaid fraud will come to court with a high-priced attorney by his side, but also a sentencing consultant who can describe to the judge a history of mental health distress, and a plan to have the doctor provide free medical care in a disadvantaged community to make restitution for his crime. 

Considering personal histories enhances the ability of judges to determine how to balance the competing goals of public safety, rehabilitation, punishment, and deterrence. 

A simple way to remedy this inequity would be to prohibit consideration of life circumstances for anyone. But the real victims of such a policy would not be well-off professionals, but rather the indigent defendants who comprise the bulk of court and prison populations. They, too, have social histories that are relevant to understanding their crimes, as well as an ability to perform community service or provide restitution to victims. So why not pursue a strategy of raising the bar of justice for all? 

Jenna Finklestein (Criminal Defense Attorney)

But to put it simply, yes, life circumstances should absolutely influence sentencing. But that doesn't mean money or wealth should have any influence. In cases where the judge is allowed to consider mitigating circumstances, he or she will consider a defendant's personal situation and history. The court can, and should, consider a person’s criminal history or lack thereof, the need for mental health or substance abuse treatment, the age of the defendant, the remorse shown and willingness to cooperate with the investigation, to name a few legitimate circumstances. 

Unfortunately, in some cases when the defendant (or his or her family) is wealthy, the access to treatment programs or the ability to pay restitution is going to work in his or her favor when those are circumstances considered by the court in determining a sentence. Additionally, it will often depend on which judge is deciding the appropriate sentence. I think most criminal defense attorneys would agree that you can go next door to another courtroom, overseen by another judge yet housed in the same courthouse, and get a completely different sentence for the same criminal offense. But to take away all discretion from the courts is not the answer to eliminating what appears to be preferential sentencing.

Alan M. Gershel (Criminal Law Professor)

A sentence should achieve proportionality. And striking the right balance depends oftentimes on competing sentencing philosophies: utilitarianism and retributivism. A utilitarian approach would tend to limit a person’s life circumstances as a sentencing factor. The paramount concerns under this sentencing philosophy would be meting out a sentence that protects society and achieves general deterrence even if it is done at the expense of the offender. On the other hand, a retributivist is typically more concerned about a person’s background since a central tenet is the offender’s moral culpability and responsibility. These are complex issues that have confounded philosophers and jurists for thousands of years. 

Within these two competing philosophies exist several sentencing theories, which are not necessarily compatible with each other. This includes the public’s and the victim’s demand for retribution (“just deserts”), incapacitation (if appropriate), deterrence, both specific and general, and rehabilitation. In weighing and evaluating these goals a relevant part of the sentencing calculus should include a person’s life circumstances regardless of where he or she may fall on the socioeconomic scale. However, it should not be at the expense of proportionality especially when the crime is particularly serious. Unfortunately, the voices of victims, as well as the impact a particular crime may have had on the public’s legitimate need to feel secure sometimes gets lost in the debate. 

By the way, on Alan Dershowitz, I am currently teaching a Sunday School class based loosely on Dershowitz's book, The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Morality and Law (Grand Central Publishing 2/1/01), here.  For those with the time and interest, Dershowitz offers a fascinating narrative.