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Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.

The Duty to Rescue and the Registry for Caregivers: A Guest Post

By STEPHEN J. DUBNER

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.

Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.

What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.

The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.

The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.

Our Take

The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.

As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.

One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.

For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.

Some Options For Designing Policy

One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.

A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.

Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.

What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.

In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.

It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.

We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.

Should Parents Get Sentencing Discounts? Our Third Freaky Post

Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Sentencing Discounts for Parents? A Guest Post

By STEPHEN J. DUBNER

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.

By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.

Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.

Time-Deferred Incarceration

For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.

During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.

Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.

As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.

Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,

Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

Here is their second post.

Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.

From an article in The Flint Journal:

Kelley Thomas’s 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 in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County ProsecutorDavid 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 stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.

In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”

Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)

In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.

Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”

Rationales in Defense of the Exemptions

What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”

Our View (Against the Exemptions)

Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.

First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.

Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members

Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.

While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.

Finally, these statutory exemptions create perverse and dangerous incentives that Freakanomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”

For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.

Our Intro Freaky Post

Over at the NYTimes' Freakonomics Blog, Ethan, Jennifer Collins and I have an introductory post up discussing our new book, Privilege or Punish. A reminder: if you use the Promo Code 27878, you get the book at 20% off.  And if that's still too much for you or your library -- which is understandable since the hardcover is still pricey -- just shoot me an email and I'll happily send you a free PDF of the book so long as you use/read it for personal use only. After the jump, I reprint the first post, which discusses some of the basic themes of the book.

“Family Values” and the Law: A Guest Post

By STEPHEN J. DUBNER

We previously featured some compelling guest posts by the legal scholarEthan Leib on the subject of friendship and the law. Now he is back, along with his two co-authors on a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. This is their first of three posts.

Leib is a scholar-in-residence at Columbia Law School, an an associate professor of law at the University of California-Hastings College of the Law, and in the spring of 2010 will be a visiting associate professor of law at theUniversity of California-Berkeley Law. Dan Markel is D’Alemberte Professor of Law at the Florida State University in Tallahassee. Jennifer Collins is a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

What a Weird Way to Care About “Family Values”: An Introduction
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Most Americans probably understand that our legal system recognizes the family in many ways. Since most people order themselves in recognizable family units, it isn’t altogether surprising that the law takes notice and uses convenient short-hands. For example, since most people probably want to leave money to their families upon death, why not save them some costs and create a default rule for where people’s money should go when they die without a will? Or consider the rule in many states that married couples share their property equally: it is a convenient short-hand that saves people time and money by selecting the rule most of us would probably select and forcing people who want different rules to make their preferences known.

There are also well-known advocates of “family values” in our culture who think the law ought not only to recognize and notice that we often privately order ourselves in families, but that the law also ought to create incentives for us to so organize. These people think we should have tax breaks for getting married and having kids.

Whatever one thinks about these sorts of laws in general, we took upon ourselves the task of seeing how these sets of commitments lead us into a very bizarre and incoherent set of policies in our criminal justice system. Our book, Privilege or Punish, mines our criminal-law apparatus to see how these efforts to promote family values and use family as a short-hand play themselves out in the high-stakes area of criminal law, where people’s life and liberty (rather than a small tax deduction) are on the line. We were surprised by what we found and ultimately concluded that in most cases, the use of family status within our criminal law was quite ill-conceived.

The criminal law uses family status in a willy-nilly way. Sometimes defendants benefit and sometimes they are burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider a few of the ones we plan on discussing here in the next few posts:

• Nearly 20 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, adultery, and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant.

To crudely sum up our various conclusions, we basically claim that the state should exercise substantial caution and indeed hostility to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we conclude 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 expressly denigrating the lives of those who don’t live by the rules of a heterosexual and 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. 

LSA, etc

Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference.  As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels. The first half of those panels was today and the second half is tomorrow (Friday).  On the punishment theory panel today, we had really interesting papers by John Bronsteen (Happiness and Punishment, with co-authors Masur and Buccafusco), Don Braman (Some Realism about Naturalism, with co-authors Dan Kahan and Dave Hoffman; Don's powerpoint presentation was both effective and hilarious--make sure you invite him to your school for this presentation), Mark D. White (In Consideration of Consequentialist Retributivism), and a less interesting and more inchoate set of remarks by me (Bentham on Stilts? On the Bare Relevance of Subjectivity to Retributivism, co-written with Chad Flanders).  It was definitely one of the best panels I've been on in the last four years, with a really good synergy and engagement by the panelists with each other and with an outstanding set of questions from a great audience at LSA. Every aspect of it was better than I could have hoped for, and I'm grateful to the other panelists and the audience for their thoughtful remarks and participation.

Tomorrow morning, bright and early at 815am, my co-author Jennifer Collins and I will be participating in a "Author Meets Readers" roundtables for our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  Tommy Crocker will be chairing the panel, which includes a great group of commentators: Melissa Murray, Don Braman, Naomi Cahn, and last but not least, the incomparable Alice Ristroph. If you're in Denver, we'd love to have you join the conversation. 

Last, if you're in Denver for the few days, make sure you try the great restaurant our panel dined at tonight: Rioja.  The tuna main course and the goat cheese calzone were delish! Thanks to Sam Kamin for the local Denver recon. 

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.