Bright Ideas: Dan Markel, Jennifer M. Collins and Ethan J. Leib on Privilege or Punish: Criminal Justice and the Challenge of Family Ties
posted by Deven Desai
Today’s Bright Idea comes from Dan Markel, Jennifer M. Collins, and Ethan J. Leib. Dan is the D’Alemberte Professor of Law at Florida State University College of Law and of course blogs at Prawfs. Jennifer is an associate professor of law at Wake Forest University School of Law. Ethan is an associate professor of law at U.C. Hastings College of Law. All three have impressive track records as scholars with articles appearing in the Yale Law Journal, Northwestern University Law Review, Iowa Law Review, Emory Law Journal, and many other excellent publications among them. With such an impressive group behind Privilege or Punish: Criminal Justice and the Challenge of Family Ties, I am quite pleased to present Dan Markel, Jennifer M. Collins, and Ethan J. Leib as they share the shape of their ambitious book. In addition, the essay explains how the project began and evolved. Both parts offer insights well worth the read.
DAN MARKEL, JENNIFER M. COLLINS, and ETHAN J. LIEB
First, we want to thank Deven and the Co-Op crew for the chance to share some thoughts about our book and the story behind its writing. Privilege or Punish: Criminal Justice and the Challenge of Family Ties is a book that tries to answer two basic but under-appreciated questions. First, how does the American criminal justice system (writ large) address a defendant’s family status? And, second, how should a defendant’s family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination?
The Shape of the Book
The descriptive part of the project originally began as a chance to ruminate upon contemporary “Antigone” situations where one’s loyalties to the state stand in tension with one’s loyalties to family members. Think of David Kaczynski, the Unabomber’s brother, or Bernie Madoff’s sons—they all called in the authorities to arrest their family member. But we soon realized the Antigone problem was only one of many sites where the state’s criminal apparatus and family intersected.
Consequently, we sought to survey the various spaces within the criminal justice system in which defendants are either benefited or burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider just a few: most states give spouses a right to refuse to testify against their spouse in a criminal proceeding and some even permit a spouse to block the testimony of a spouse who is willing to testify; almost twenty states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member; many states permit or require sentencing discounts to offenders who are parents with care-giving obligations; most states impose duties to rescue, supervise and support children and the breach of those duties renders one eligible for criminal sanction; most states have bigamy and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant. These are just some of the various “family ties benefits” and “family ties burdens” in our criminal justice system.
Naturally, we weren’t satisfied with merely cataloguing these benefits and burdens. We also wondered how policymakers and courts *should* view these laws. And so we established a framework of analysis for these benefits and burdens, one that was inspired by, but not identical to, the framework used to scrutinize suspect classifications in constitutional law. To sum up our various conclusions crudely, we basically claim that the state should exercise substantial caution and indeed skepticism to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we concluded that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.
Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties burdens and benefits are often expressively denigrating the lives of those who don’t live by the rules of a heterosexist and often repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.
By offering both our descriptive and normative claims, we hope to be doing something different and important. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the variety of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one’s family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that we hope will be of interest to anyone seeking the improvement of our criminal justice system.
Below the fold, we talk a little about how the evolution of our book from idea to reality.
June 9, 2009 at 9:06 am
Tags: Criminal Law, Dan Markel, Ethan Leib, family, Jennifer Collins, privilege or punish
Posted in: Bright Ideas, Criminal Law
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