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“I’m too rich” may soon be on its way out as a criminal defense, at least in California. That’s because California Assemblyman Mike Gatto has introduced a bill that would prevent attorneys from using the controversial idea of “affluenza” as a defense or mitigating factor in criminal cases.


Affluenza, for those who haven’t heard the buzzword, is essentially the idea that extremely wealthy young people can’t be held responsible for their actions because their upbringing left them ill-equipped to make good decisions. Affluent kids, according to the argument, are used to getting whatever they want and feel a sense of entitlement that they use to rationalize irresponsible choices. Simply put, they can’t imagine that there could be any negative consequences for their actions.


Affluenza actually isn’t as new a term as many people think—it was coined by therapist Jessie O’Neill in her 1997 book The Golden Ghetto and was originally defined as “the collective addictions, character flaws, psychological wounds, neurosis, and behavioral disorders caused or exacerbated by the presence of or desire for wealth.” However, the term didn’t rise to prominence in the world of criminal law until late 2013, when it was used as a defense for 16-year-old Ethan Couch, who had killed four people in a drunk driving accident.


Controversy in Original Affluenza Case


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Ethan Couch’s case was horrifying enough before the affluenza defense even entered the picture. One night in June 2013, he and some of his friends stole two cases of beer from a local Walmart in their Fort Worth suburb and proceeded to get drunk. Later, the visibly intoxicated teenager volunteered to drive his friends on an errand, and they all piled into his father’s truck. Driving 70 mph in a 40 mph zone, Couch plowed into a woman with a flat tire and the three people who had stopped to help her. All four were instantly killed.


When police arrived at the scene, Couch was belligerent and so drunk that he got tangled up in a nearby wire fence. The police discovered that his blood alcohol level was three times over the legal limit and that he also had Valium in his system.


Given the details of the case, it seemed unlikely that Couch would be able to avoid a lengthy prison sentence. But amazingly, the judge in Couch’s case sentenced the teen to 10 years’ probation and a stay in a residential treatment facility after Couch’s criminal defense attorney described affluenza as a mitigating factor. Couch’s lawyer claims that affluenza wasn’t the deciding factor in the case, but the verdict still outraged the American public, and the defense psychologist who used the term in the trial told CNN that he wishes he could take it back.


The term and the verdict struck a nerve because they essentially proved that wealth could be used to put the defendant above the law. There is supposed to be some consistency in our justice system, but it’s hard to imagine that Couch would have received the same light sentence if he had been from a less well-to-do family.


Legislation or No, Affluenza Is Not a Viable Defense


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It seems absurd that California should even have to pass a bill banning the affluenza defense; attorneys and defendants should not be using the defense in the first place. First of all, there is no consistent definition of affluenza—if anything, the term appears to be more literary than medical. It is not recognized as a true mental disorder in the Diagnostic and Statistical Manual, and its use as a defense is an insult to defendants who truly do have mental disorders that might mitigate their responsibility.


What’s truly dangerous about the affluenza defense in Couch’s case is that it sets a precedent for other wealthy offenders. His verdict sends the message that our justice system is broken, and that you can get away with committing crimes if you just have enough money.


If nothing else, the controversy over the Couch case will likely deter more defense attorneys from using the same affluence argument, or at least deter them from framing it in quite the same way. Daniel Filler, a former defense attorney and current law professor at Drexel University, told USA Today that while using a client’s background can be good defense work, he doesn’t think any savvy lawyers will cry affluenza after the notoriety Couch’s case gained. Ethan Couch’s story has once again drawn attention to the disparity in the treatment of wealthy and impoverished defendants, and although no one but the Couch family seems too happy about the outcome, the case has renewed an important national conversation about the role of wealth in determining criminal punishments.


About the Author:
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.

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