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Friday, September 29, 2006

Finally, Family Ties on SSRN!

No, not screenplays with your favorite episodes of Tina Yothers.  Rather, at long last, I'm happy to announce that Ethan, Jennifer Collins (law, Wake Forest), and I have posted on SSRN a draft of our paper about the intersection of the criminal justice system and the family.  Here's the link.  Download it and make us feel better.  The paper, whose title we changed from earlier drafts, is now entitled: Criminal Justice and the Challenge of Family TiesShort is the new long, right? So we dropped the colon.  Here's the abstract:

This Article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a 'Spartan' presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.

You still haven't downloaded it? Ok, here are some of our crazier more provocative claims and findings. 

First, did you know that in fourteen states you could harbor a fugitive without penalty--as long as that person is a family member? We think that's a bad idea and we'll tell you why. 

Second, we think the evidentiary privileges for spouses and family members in the criminal justice system should be eliminated. Full stop.  Read the paper, and we'll tell you why. 

Third, we explain why sentencing discounts for people on account of family ties and responsibilities should be eliminated.  We argue that such discounts are wrong, illiberal, and bad policy, and that in the case of the "irreplaceable caregiver," time-delayed sentencing should be used instead where possible.  "What's time-delayed sentencing?" you ask.  Read the paper and we'll explain...

Seriously, this paper was a lot of fun to write with Ethan and Jennifer, and I'm taking it on the road this coming month, presenting it at Miami, BC Law, and Osgoode Hall in Toronto.  It doesn't come out until the summer, so we'd really love your feedback and comments.  Many thanks.

Posted by Dan Markel on September 29, 2006 at 12:54 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel, Ethan Leib, Law and Politics, Legal Theory | Permalink

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