Delaware’s Affluenza Case Affects Justice, Too

The blogosphere is afire with outrage: A rich do-nothing given probation for raping his three-year-old daughter! Judge says he “wouldn’t fare well in prison!”  What injustice!

Hold on a sec. The case of Robert Richards IV, the aforementioned do-nothing, is a miscarriage of justice, but not for the reasons bloggers, and some journalists, are screaming about. 

First, just to clarify, the crime took place in 2005, and sentencing happened in 2009.  We’re learning about it now because Richards’s ex-wife has filed a civil suit based on the rape. This didn’t just happen yesterday.

Second, while it is unusual (to say the least) that Judge Jan Jurden took Richards’s welfare in prison into account, the real injustice is that by the time Richards was sentenced, he was only convicted of fourth-degree rape, which only calls for a prison term of zero to 2 ½ years. In Delaware, fourth degree rape  is usually applied in cases of “statutory rape,” i.e., sexual intercourse with a minor. Technically, the criminal statute does include non-consensual sex, but normally, that calls for a higher charge.

Originally, Richards was charged with two counts of second-degree rape, each of which would have carried a mandatory ten years in prison. But a few days before the trial, in June 2008, Richards got a plea deal from the Delaware state prosecutor: admit to the abuse, and go down to fourth degree instead of second. Prosecutor Renee Hrivnak recommended probation, not jail time—surely part of the plea deal as well.

So the real question is: Why was such a generous plea deal offered, in a case as hideous as this one? 

There are many possibilities, with varying degrees of believability. 

Most likely, and unfortunately for all of us sickened by this crime and its sentence, is that there wasn’t a strong enough likelihood of conviction. Media reports from the last 24 hours only repeat the accusation made by a five-year-old girl, fully four years after the rape occurred—together with an admission from Richards, who said, “It was an accident and he would never do it again.”  What does he mean by “accident” here?  We don’t know.

Moreover, by 2008, there probably wasn’t any physical evidence remaining from the 2005 crime.  And weren’t we just told, in the context of the accusations against Woody Allen, that child testimony is often unreliable? 

It’s very possible that Richards’s lawyers played a high-stakes game of chicken, and the Delaware prosecutors offered this deal because the slimebag might’ve gotten away with it otherwise. That’s not quite justice, but it’s not “affluenza”—a rich dude getting "treatment" instead of punishment—either. The current Internet mob’s cry is that a rich guy just got away with rape. Actually, a rich guy got away with rape in the (probable) absence of fully convincing evidence two years after the crime.

It’s also possible that the Delaware state prosecutors, or the judge, were in cahoots with the rich-as-royals du Pont clan, of which Richards was a scion. It is Delaware, after all; a small state with a handful of very wealthy families, of whom the du Ponts are the wealthiest. Could someone have said something at a country club to someone in the prosecutor’s office? It’s certainly plausible, especially to fans of House of Cards—but of course there’s no evidence anywhere of wrongdoing. Not at this time, anyway. 

There are, to be sure, a few weird loose ends. Beau Biden, attorney general of Delaware and son of our vice president, reportedly said that the prosecution of crimes against children was a top priority. But then, he’s also said that he wasn’t involved in, or even aware of, the Richards prosecution. Really? 

As we say down South, that dog won’t hunt.  A celebrity defendant accused of a horrific crime cuts a massive plea deal—and the AG isn’t even aware of it?  He leaves it to his deputy, Ian McConnel, to rubber stamp the deal?  Answers, please.

But wait, it gets weirder. Current state prosecutor Kathleen Jennings used to be—get this—Richards’s probation lawyer.  Now, there’s nothing necessarily suspect about that; prior to taking her current job in 2011, Jennings was in private practice for 15 years. Before that, she was a deputy attorney general—so of course Richards’ family got him the best. Need I say again: Delaware is a small state. 

But at the very least, this situation, too, cries out for answers. Was Jennings Richards’s lawyer in 2008 and 2009, when he got his sweetheart deal? Are there other relationships between the du Pont clan and the AG’s office? 

If you’re of a conspiratorial bent, this all looks like a shady cover-up. Rich defendant, revolving door attorneys, last-minute plea deals… cue the brooding theme music and time-lapse photography.

I, however, am not of such a mind. Not because I’m not cynical enough—rather, because I am too cynical. I think that to lay this case at the feet of a few bad guys is to miss the wider injustice that this case really represents. This case wasn’t a few villains (or incompetent judges) thwarting the justice system. This was the justice system itself.

Richards got his plea deal because he had good lawyers, one of whom has indiscreetly commented that “it was [a] more than reasonable, an enlightened plea offer.”  Of course, he had them because he was rich, but also because he was privileged, white, and above all connected. And those lawyers produced a lot of documents and sowed a lot of doubt. This would’ve been a hard case that might’ve ended in a loss. The prosecutors folded.

Not to belabor the point others have made, but if Richards were a less enfranchised American—say, 33-year old African American woman Marissa Alexander, facing 60 years in prison for waving a gun at her abusive husband; or CeCe McDonald, a transgender African American woman who pled down not to probation, but to 41 months in prison, for defending herself against a transphobic and racist attacker—things would have turned out differently. The lawyers would have done their best, but they wouldn’t be past deputy attorney generals, and they’d probably have a lot of files in their briefcase. No way Delaware’s prosecutors would agree to no jail time. 

The problem isn’t one rich guy buying his way out of the system. The problem is the system itself, underfunded by conservatives and the tough-on-crime crowd, and thus at the mercy of lawyers able to play the game with their full attention. Prosecutors, public defenders—none of them have the resources to be able to focus like a good criminal defense team can. It’s affluenza, alright—but the entire system is afflicted with it.

McConnel, the deputy attorney general who approved the plea deal, told the Wilmington News Journal that these cases “are extremely complicated and difficult and we strive to do justice in each and every case to the best of our ability given the facts and circumstances presented; That sometimes results in a resolution that is less than what we would want."

That’s an understatement.