Privilege or Punish Criminal Justice and the Challenge of Family Ties

by Markel, Dan; Collins, Jennifer M; Leib, Ethan J

• ISBN13: 9780195380064
• ISBN10: 0195380061
• Format: Hardcover
• Copyright: 2009-04-20
• Publisher: Oxford University Press

Summary

This book answers two basic but under-appreciated questions: first, how does the American criminal justice system 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? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, the authors explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but Markel, Collins, and Leib argue 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. Privilege or Punish breaks new ground by offering an important synthetic view of the intersection between crime, punishment, and the family. 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 panoply 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 should be of interest to anyone interested in the improvement of our criminal justice system.

Author Biography

Dan Markel is Assistant Professor of Law at Florida State University College of Law and the Founder and Editor in Chief of "prawfs.com."
Jennifer Collins is an Associate Professor of Law at Wake Forest University School of Law.
Ethan Lieb is an Associate Professor of Law at the University of California Hastings College of Law.

Table of Contents

Acknowledgments	p. ix
Introduction	p. xi
Privileging Family Status
A Roadmap	p. 1
A Survey of Family Ties Benefits	p. 3
Evidentiary Privileges	p. 3
Exemptions for Family Members Harboring Fugitives	p. 6
Violence Within the Family	p. 9
Pretrial Release	p. 12
Sentencing	p. 12
Prison Policies	p. 16
A Normative Framework for Family Ties Benefits	p. 21
Some Prefatory Remarks	p. 21
The Family and the Modern State: An Ambivalent Relationship	p. 23
Some Normative Costs of Family Ties Benefits	p. 26
Scrutiny of Family Ties Benefits: A Normative Framework for the Presumption	p. 32
Applying the Framework to Family Ties Benefits	p. 35
Evidentiary Privileges	p. 36
Exemptions for Family Members Harboring Fugitives	p. 43
Violence Within the Family	p. 45
Pretrial Release	p. 46
Sentencing	p. 48
Prison Policies	p. 53
Conclusion	p. 56
Punishing Family Status
A Roadmap	p. 59
A Survey of Family Ties Burdens	p. 63
Omissions Liability for Failure to Rescue	p. 63
Parental Responsibility Laws	p. 66
Incest	p. 69
Bigamy	p. 70
Adultery	p. 71
Nonpayment of Child Support	p. 72
Nonpayment of Parental Support	p. 72
A Normative Framework for Family Ties Burdens	p. 75
A Defendant-Centered Perspective, Among Others	p. 75
Revisiting the Costs of Family Ties Benefits	p. 81
Uncovering a Structure of Family Ties Burdens: Voluntary Caregiving	p. 85
Overcoming Family Status Through a Focus on Voluntary Caregiving	p. 90
Bringing It Together: How to Scrutinize a Family Ties Burden	p. 95
Applying the Framework to Family Ties Burdens	p. 99
Omissions Liability For Failure to Rescue	p. 99
Parental Responsibility Laws	p. 112
Incest	p. 118
Bigamy	p. 127
Adultery	p. 135
Nonpayment of Child Support	p. 140
Nonpayment of Parental Support	p. 144
Coda	p. 149
Notes	p. 155
Index	p. 223
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