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Wednesday, March 22, 2006

Family Ties, etc.

So, there's been a surfeit of good news lately.  Nearly four weeks back I got married.  Upon return from the honeymoon, I discovered to my great delight that I'd been offered a job at Washington University in St. Louis (the Osita and I go this weekend to visit and we're very curious to hear recommendations about St. Louis points of interest).  And last night, WFU prawf (and erstwhile PB guest) Jennifer Collins, Ethan and I sent off to the law reviews our draft of "Criminal Justice and the Antigone Problem:  Should Family Ties Matter?"

In anticipation of lots of interesting things said about bloggership at the HLS symposium next month, we thought it would be a good idea to serialize our argument on the blog (before we post it on SSRN). The paper is still very much a draft and who knows if it will get picked up where we sent it, so there's plenty of time for revisions. We will leave out most footnotes in the blog excerpts.  We look forward to your feedback.  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” 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 within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.

The introduction is after the jump.

           Few people envied David Kaczynski.  In 1996, he found some old writings by his brother Ted that were similar in tone and content to a manifesto submitted to newspapers in 1995 by a feared terrorist, known to law enforcement agents as the Unabomber.  David was then faced with an agonizing choice about whether to disclose his discovery to federal investigators.  He ultimately revealed Ted’s name, believing that he had assurances from federal authorities that they would not pursue the death penalty against his brother, whom David believed to be mentally ill.  When Attorney General Janet Reno decided, nonetheless, to pursue a capital case, David was devastated.  Later, Ted Kaczynski pled guilty to charges that carried a life sentence.  Subsequently, David Kaczynski became an anti-death penalty advocate. 

David Kaczynski is perhaps the best-known example of a family member in recent years who provided law enforcement officials with the critical information that led to the arrest of a loved one.    Unsurprisingly, many family members confronted with a dilemma like David Kaczynski’s make an entirely different choice.

Consider the Sheinbein family, for example.  In 1997, a high school senior named Samuel Sheinbein was charged with murder after police found the burned and dismembered body of an acquaintance in the garage of a vacant house in Maryland.  But Sheinbein was never brought to trial in Maryland because he fled to Israel within days of the murder and Israel subsequently refused to extradite him.

So how was a 17 year old able to get to Israel so quickly?  Prosecutors alleged that after learning that his son was a murder suspect, Samuel’s father, Sol Sheinbein, brought Samuel, who was then hiding in New York, his passport, some clothing, and a ticket to Israel.  Sol also drove his son to the airport.  Sol Sheinbein then flew to Israel a few days after his son and continues to live and work there.  Prosecutors in Maryland subsequently filed a misdemeanor charge against him for obstructing a police investigation.  But because of the nature of the charge and his status as an Israeli citizen, Sol could not be extradited. After Samuel Sheinbein eventually pled guilty before an Israeli court and was sentenced to spend 24 years in prison, Sol Sheinbein gave his first interview to an Israeli newspaper. 

In defending his actions, Sheinbein, a practicing lawyer, stated that “I did some simple soul-searching.  And I came to the conclusion that with all due respect to the law, I am first of all a father and only after that a citizen.”Samuel Sheinbein’s mother, in an earlier statement, claimed “any parents would go and would do what we are doing.”

The choices David Kaczynski and Sol Sheinbein made arise virtually every day in every jurisdiction, where family members have the critical opportunity to facilitate or obstruct enforcement of the criminal law.  Indeed, in recent months, the media reported stories about fugitives whose family members create alibis (including reporting the death of the fugitive) for them; criminals who perpetrate their frauds with the assistance of family members; and, white-collar criminals whose spouses offer testimony or other evidence in exchange for a reduction of the criminal liability they themselves face.

Though the conflict between duties as citizens and loyalties as family members has long been explored in literature – most prominently in Antigone, Sophocles’ play about a young woman’s decision to defy the ruler Creon in favor of affording her brother a proper burial – it is a relatively uncharted area in legal scholarship – especially with respect to how this classic tension manifests itself in the criminal justice system.  The conflict of loyalty at the heart of Antigone is just one of the various challenges a modern criminal justice system faces regarding the proper treatment of family ties.[xiv]  That’s because the state does not always impinge upon family members in the course of investigating or prosecuting all the crimes it knows about; indeed, sometimes the law defers to the decision of family members to prioritize their duties to family over their duties as citizens.  We characterize state policies that seem to defer to family interests as “family ties subsidies” (or family ties privileges or benefits) in this Article.[xv] 

At the core of this Article stand two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate, protect, or subsidize family interests? The Article answers these descriptive and normative questions separately.  In Part I, we provide an overview of the multiple sites in which family life intersects with the criminal justice system.  We trace these intersections from the initial decision by family members to engage in criminal activity through the entirety of the eventual intervention by the criminal justice system.  For example, Part I focuses on efforts by some states to expressly shield from prosecution family members who harbor fugitives or conceal relevant information from law enforcement officials.  We also explore how jurisdictions offer evidentiary privileges and other exemptions affecting evidence-gathering that constrain the state from intruding into the familial relationship.  We then turn to matters of pre-trial release, sentencing, and prison administration, where many jurisdictions expressly permit consideration of family ties when making decisions in these areas.  In closing Part I, we specify which aspects of these intersections between criminal law and the family are properly characterized as family ties subsidies, and which ones are likely not. 

Part II then takes a normative turn and offers a framework for assessing family ties subsidies within the criminal justice system: we assess the costs they are likely to exact from society and explore why they should generally be rejected absent an overriding interest.

We begin with an appreciation of the important role families play in securing the conditions for human flourishing. We also note the ambivalent relationship the state has with the family: on the one hand, the state depends on the family in part to prepare individuals for their role as citizens; on the other hand, the state must compete with the family for the loyalty of individual members.  That discussion serves as a springboard for our critique of family ties subsidies in the realm of criminal justice and the arguments made in support of such subsidies.   

Part II articulates four distinct normative concerns that may arise when extending special recognition of family ties in the criminal justice system.[xviii] First, the historical context in which the family’s relationship to the criminal law has evolved reveals that many family ties subsidies often served (and in some cases, continue to serve) to perpetuate patriarchy, gender hierarchy and/or domestic domination.  Our second concern is that accommodations to families might impede the realization of criminal justice understood as the effective and accurate prosecution of the guilty and the exoneration of the innocent.  Our third reservation stems from the way that family ties preferences can disrupt norms of equality that should otherwise prevail in an attractive regime of liberal governance.  On this view, criminal investigations and prosecutions should treat citizens’ interests with equal concern, and without fear or favor.  The extension of special privileges to persons simply because of their family situation bears an onus of justification, especially since the policy that extends such privileges will have a negative and discriminatory effect on those without family ties – some of whom never made actual choices to avoid family ties.  Fourth, we note that some family ties subsidies can have the undesirable effect of incentivizing more criminal activity – and more successful criminal activity at that.  To the extent the law effectively signals messages to the public, some family ties subsidies encourage family members to keep their criminal enterprises in the family.  If sentencing policies serve to create a class of persons that are immune from incarceration or that receive heavy discounts in their prison terms, then those persons will be the most sought after to serve in criminal enterprises – or they themselves might seek out criminal activity. 

We think these four considerations, taken together, suffice to create a “Spartan presumption” against family ties subsidies in the criminal justice system.[xix] Of course, erecting a presumption does not entail eliminating all subsidies or accommodations of family ties; instead, we propose that such subsidies undergo a searching set of inquiries.  First, to what extent does the family benefit contribute to patriarchy, inaccuracy,[xx] inequality, or heightened risk of crime, the normative costs regularly associated with family ties subsidies?  Second, assuming the benefit implicates one or more of these concerns, to what extent is the benefit vindicating an overriding interest that justifies the use of the benefit in the criminal justice system?  Finally, are other less troubling means available to protect the interest underlying the benefit?  To be sure, this kind of scrutiny will not resolve all questions: we will inevitably have disputes about the strength of competing claims.  But it will do some important work in helping us think more clearly about the problem before us, and, in close cases, will alert us to some of the potentially hidden costs of family ties benefits and subsidies.[xxi] 

In Part III, we apply the normative framework developed in Part II to assess many of the subsidies we identified in Part I.  Some we find good reason for eliminating – evidentiary privileges, exemptions from prosecutions, and sentencing discounts in most cases. In other instances, we argue that the Spartan presumption is rebutted because the normative costs of the subsidies are relatively low and an overriding interest justifies the use of the benefit – for example, the placement of prisons in locations adjacent and accessible to large population centers and the placement of inmates near their families.  In some cases – child-sensitive arrest practices, in particular – the normative costs are so low or non-existent that even without an overriding interest, the presumption can be rebutted.  Finally, there are some instances where less normatively troubling means are available to protect the family interests at stake without encroaching on the core values of the criminal justice system – and we demonstrate how that could work.

[xiv] Of course, we are led to be more sympathetic to Antigone’s plight by Sophocles because the laws she was flouting were unreasonable and oppressive, and an especial affront to the social norms of Greek times, which required proper burial for the dead lest their souls wander forever after. 

[xv] When we say the state extends a benefit (or a subsidy) because of family ties, we are using those terms in an expansive manner, for what we are really referring to are situations where the state extends a privilege to (or forbears from requiring something from) a family member on account of his or her being a family member with someone else.  (We tend not to use the word “privilege” to help avoid confusion; evidentiary privileges are just one example of these family ties benefits.)  Some might think these benefits merely “respect” family ties rather than subsidize or benefit them, but we think that because these benefits have real consequences (as opposed to simply conveying attitudes of respect), it is better to characterize them as actual benefits or subsidies. 

[xviii] We recognize that not each family ties subsidy will implicate these concerns.  We therefore begin with only a presumption against family ties subsidies, rather than wholesale hostility.

[xix] We utilize the term “Spartan” presumption simply to refer to one well-known regime’s decision to emphasize loyalty to the state over loyalty to the individual nuclear family unit.  The regimented manner of family life in Sparta served that state’s primary purpose, which was the cultivation of state-devoted warriors. See, e.g., Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 632 (“Who… can ever forget the Spartan mother who berates the messenger for first telling her that her five sons have died before indicating that the Spartans indeed had won the battle?”); William A. Galston, The Legal and Political Implications of Moral Pluralism,  57 Md. L. Rev. 236, 245 n. 45 (1998) (describing ancient Sparta as a place “where family life, education, and public resources were all directed toward the cultivation of military virtues.”).

[xx] When we use the term inaccuracy, we are using that term to refer to the idea that justice is not being accurately realized (in terms of effective prosecution of the guilty and exoneration of the innocent).  In this sense, inaccuracy might also indicate an unjustified leniency (or harshness).

[xxi] For the most part, our discussion centers on legal policy issues, which are usually and, in many cases, more appropriately developed by legislatures; however, our argument does address the issue of new intra-familial privileges, as well as the use of some common law defenses, which are typically addressed in the courts in the first instance. 

Posted by Administrators on March 22, 2006 at 09:05 AM in Article Spotlight, Blogging, Criminal Law, Dan Markel, Ethan Leib | Permalink


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Posted by: Sharai Libas | Nov 21, 2020 2:55:54 AM

I've exercised the prerogative of deleting a comment on this thread. Let me remind commentors that they should presume good faith and keep the discussion civil and friendly. If the person who wrote the comment wishes to continue the dialogue privately, they know how to reach me. Unfortunately, the person leaving the comment operates under a pseudonym and fake email address. Not surprising.

Posted by: Dan Markel | Mar 22, 2006 5:25:57 PM

I have to confess I'm not gleaning those insights from the discussion (or my contribution to it) simply because some men are open about trying to please their spouses. I think Bart's on to something and I suspect these nicknames emerge out of deference to some concern for privacy; if I mention something about the Osita, I usually get clearance ex ante, or trouble ex post. In any event, June's query is taking us afield from the topic of the paper, which I hope is what this "bloggership" stuff is supposed to be about.

Posted by: Dan Markel | Mar 22, 2006 4:34:12 PM

This whole discussion is certainly helping me understand that debate about the male-dominated blogosphere.

Posted by: Sam Bagenstos | Mar 22, 2006 1:55:53 PM

With no apologies to John Mortimer or Horace Rumpole, "She Who Must Be Obeyed." The British distributor of BBC and Thames materials, Acorn, sells a very nice "She Who Must Be Obeyed" fleece sweatshirt. I know I'm in deep when my wife ("the Boss") is wearing it.

Posted by: Jeff Lipshaw | Mar 22, 2006 1:31:46 PM

The non-naming, or derivative naming of wives seems to be very common in the blogosphere. To cite two prominent examples, Josh Marshall of Talking Points Memo follows the non-naming model, while Glenn Reynolds uses the blogname-wife approach (the "Insta-wife". It might be interesting to see for comparison purposes how husbands or other sig others are referred to. All that said, the pet name approach that Professor Markel uses seems as good as any.

Posted by: Bart Motes | Mar 22, 2006 1:19:06 PM

She emphatically does. To me, it's "Yes Dear."

Posted by: Dan Markel | Mar 22, 2006 11:14:01 AM

Mr. Markel, does your wife have a name of her own?

Posted by: June | Mar 22, 2006 10:18:36 AM

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