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Thursday, June 12, 2008

A contemporary Antigone story?

Over in Michigan, there's a story developing about a father who was arrested for harboring a fugitive: his son.

It's a choice that no parent would want to make. Kelley Thomas' 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad's doorstep on E. Lorado Avenue. Now, Thomas has been charged with harboring a felon. What's a parent to do? It's a difficult question, even to Genesee County Prosecutor David Leyton.

"The fact that he's the father was discussed by my staff, and we will take that into consideration as the case progresses," Leyton said. "It's hard to turn your back on your own flesh and blood." ... The Genesee County Sheriff's Department and the U.S. Marshals Service raided the house on May 30 and police say they found Carter hiding in the bottom cabinet of an armoire at his father's house. Thomas, 45, told police that he didn't know his son had escaped from jail. Their cases are still pending. Thomas could face four years in prison. Carter had been in the Treutlen County Jail in Soperten, Ga. for a probation violation for assault and cocaine sales.

This story, and the reader comments on it that follow,  raise the question of whether states should extend what Ethan, Jennifer Collins and I have called "family ties benefits" in the criminal justice system. (The newspaper article refers to  the law review article I wrote with Jennifer and Ethan, which will form  part of our  forthcoming book with Oxford on criminal justice and the family.) Some analysis after the jump.

As I mentioned to the reporter, at the time of our study, we saw about 18 states that give either sentencing discounts (4) or prosecutorial exemptions (14) to family members who harbor fugitives. In the article, we explain our reasons for thinking that such "freebies" are wrong-headed: primarily, they create more likelihood of Type II errors (where wrongdoers escape condign punishment), discriminate against those without family networks to offer refuge, and increase the likelihood of successful crime networks. That we think harboring fugitives is wrongful, even if parents do it for their children, of course, is consistent with relatively low sentences. Four years incarceration--what the father in this story faces--is pretty steep to my mind.

Of course, in this particular case, if the father can convincingly show that he didn't realize his son was a fugitive, then that should also be a basis for exculpation. It does seem a bit fishy, though, that the son was found hiding in the armoire of the father's house and that the father wouldn't know that his son had not completed his sentence. According to this story, "[t]he father, Kelley Thomas, allegedly told police he had heard a rumor that his son had escaped from jail but claimed he never asked him about it."

But those are facts for a jury to decide and there may be other circumstances at play here. Interesting case. And probably more frequently occurring than one would think. After all, families are often the ones criminals, like the rest of us, reach out to first.

Posted by Dan Markel on June 12, 2008 at 06:19 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink

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You say that "if the father can convincingly show that he didn't realize his son was a fugitive, then that should also be a basis for exculpation," but is intent an element of the crime?

Who bears the burden of proof here - does the father have to prove he didn't realize it, or does the prosecution have to prove beyond a reasonable doubt that he DID realize it (subjective std.), or that he at least should have (objective std.)?

Posted by: JimAtLaw | Jun 13, 2008 7:03:42 PM

Jim, I apologize for being unclear. You are right to note of course that the prosecution bears the burden of proving all the elements at trial. I was speaking colloquially, and in the context of pre-trial negotiations that may get the DA to toss the charges if the D can explain to the DA that he didn't know his son had escaped from prison.

FWIW, I did a hot minute of google searching on the intent issue and my sense is that based the prosecutor must show willfulness or knowledge, which are both subjective standards, albeit of a heightened variety.

Posted by: Dan Markel | Jun 13, 2008 7:34:39 PM

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