An Abstract of Punishing Family Status

I'm very happy to announce that Ethan Leib, Jennifer Collins and I have just shipped off a draft of our paper, Punishing Family Status, to a bunch of law reviews. 

This paper tries to break ground by providing analysis of two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or penalties that impose punishment upon individuals on account of their familial status. The six we train our attention on here are vicarious and omissions liability, incest, bigamy, adultery, and failure to pay child support. Part II develops a framework for the normative assessment of these family ties burdens.

By looking at these sites synthetically, we uncover what might be thought of as the secret ambition of these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design—particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

We’re very excited about this paper, which is part of a larger book project -- tentatively entitled: Privilege or Punish? Criminal Justice and the Challenge of Family Ties -- that has received offers of publication from three top university presses: OUP, Yale, and CUP. Over the course of the next few weeks, we will be sharing  highlights and excerpts of the paper. We welcome your substantive feedback via email or in comments here at least until summer 2008, as we will be revising this and our  earlier effort together while integrating them into a unified book length treatment on how and why the criminal justice system  discriminates against defendants (positively and negatively) on the basis of family ties or status.  Stay tuned. And if you're interested in the whole draft of Punishing Family Status right away, please feel free to email me. We still have a bunch of comments we're responding to so we haven't yet put it up on SSRN, but we will in the next month or so.