Analyzing Family Ties Burdens: A Framework

In two previous posts, Ethan, Jennifer Collins and I identified some practices that we characterize as family ties burdens.  Here, we present a normative framework for analyzing whether such penalties or burdens can be justified.  First, we quickly explain why we adopt a defendant-centered perspective in this project. Then, we revisit some of the costs of family ties benefits that we adumbrated and explored last year to see if any retain applicability in this new context of family ties burdens. Finally, we highlight the voluntary care-giving feature we see in the structure of family ties burdens, a feature which we think can serve as a guide for scrutinizing burdens more generally. Informed by this obscured but intelligible principle, we offer some thoughts on how to restructure family ties burden allocations within the criminal justice system.

A.            Why a Defendant-Centered Perspective?

We must bear in mind that evaluating a policy from the defendant’s perspective is important because it is after all the defendant whose liberty the state seeks to place in peril. The conduct rules at the core of this Article are aimed at defendants – and it seems necessary to analyze those conduct rules on their own terms.  After all, it is the defendants who are coerced; and the criminal justice system’s coercive nature is its most important feature demanding justification.

But we aren’t naïve.  There is more to say on the matter. In characterizing family ties burdens, we have focused exclusively upon burdens imposed upon de-fendants and potential defendants, even though it is often the case that someone within the family – or “the family” as a social institution – could potentially be described as benefitting from the “burden.” In other words, what appears to be a penalty on familial status in an individual case could be imposed as part of a strat-egy to confer benefits to the social institution of the family as a whole.  For in-stance, the recent criminalization of nonpayment of child support looks like a “family ties burden” in the sense we defined it earlier.  That’s because, as a general matter, failure to pay debt is not a reason for criminal punishment.  Indeed, other legal mechanisms exist to help debtors, most prominently, bankruptcy.  But now, failure to pay child support, which is a form of debt, is a basis in many jurisdictions for criminal punishment.  Thus, failures to meet some kinds of intra-familial financial obligations are now penalized much more harshly than the failure to meet other financial obligations. That definitely creates a burden on a defendant, at least as we defined it earlier. Indeed, in some cases, the burden imposed on the defendant is also a burden on those whom it is allegedly supposed to help. Thus, for example, a woman whose ex-spouse is jailed for failure to pay child support may object on the ground that this burden imposes a terrible tax on her family as well as on the defendant, in that it reduces the ability of her children’s father to play any kind of meaningful role in their lives.  Thus, many of the practices we have described in Part I powerfully affect family interests beyond those of just the defendant.

Characterizing these practices as “burdens” might be further questioned if we alter the lens through which we are looking at the problem. The point of the recent criminalization efforts may be aimed at effecting the consilience of family life, in other words, keeping more families together by raising the costs of divorce.  If this is the purpose, the policy of criminalizing non-payment of child support might provide a benefit to both the offender and the institution of the family overall    

Indeed, the same frame might plausibly be applied to some of the other family ties burden we have discussed.  Consider the prohibitions upon incest and the creation of liability based on omissions and vicarious liability.  Even though all these practices impose a “penalty” on an offender on account of his familial status, these practices are arguably designed to facilitate a legal atmosphere conducive to the successful raising of children.  Accordingly, throughout our inquiry into a particular burden, we will have to focus careful attention upon whether it can legitimately be conceived as such from a more general sociological standpoint.  Although we feel justified in taking our “defendant-centered” approach to identifying burdens, when it comes to scrutinizing their ultimate justifications, some broader discussion of their sociological achievements will be necessary.  Yet our plan in what is to come is not to analyze any particular family ties burden exhaustively; we will feel satisfied if we can help others think about them differ-ently, focusing on underappreciated costs and underanalyzed alternatives to their design. 

These criminal liabilities or enhanced penalties might have different rationales too – aside from simply extending all-things-considered benefits to family life.  First, the various burdens placed on offenders may reflect imperfect or indirect choices of decision-makers in the criminal justice system to enhance distinctive criminal justice goals such as deterrence or retribution.  For example, having heightened penalties for certain incestuous relationships might be a way the state tries to compensate for the difficulty of getting incest victims to report their status as victims.  Heightened penalties are a plausible way of achieving greater deterrence in certain contexts where there is less likelihood of a victim coming forward.

Alternatively, the state legislature may be using the criminal justice system to communicate to offenders the value that when one commits a crime against certain family members, one is even more worthy of reproach and condemnation. In this respect, the penalties might be thought to advance the criminal justice system’s educative, expressivist, or norm-projection purposes, by revealing society’s deep values: that attacks upon, or neglect of, one’s family members are worse than attacks upon, or neglect of, non-family members because of the additional breach of trust that a caregiver signals when opting into a relationship of care-giving. If heightened penalties attach in the context of crimes against victims with whom one has opted-into a relationship of care-giving, then increased penalties might be justifiable because the offense (or omission) with respect to that particular victim is worse: when you hurt or fail to protect someone whom you’ve already signaled to society that you will care for, then one might plausibly say there is an extra wrong (a breach of an implicit or explicit promise) that has been committed. Or, as we suggest below, you’ve committed a different wrong, by lulling others into a false sense of security from which they fail to help the person in question.

A distinct but related idea is that these apparent penalties serve other legitimate social goals of the state that have little to do with deterrence or retribution or even the vitality of family life.  On this view, it might be that penalties imposed on the basis of familial connections to the crime stand to serve other purposes that, in fact, directly benefit the state.  For instance, the legislature might believe that imposing impediments to even consensual incest between adult siblings is important for reducing the prospects of increased social expenditures on food stamps and medical care, because they assume that incestuous relationships will be procreative of offspring who are more likely to require subsidized medical support.   Again, here, we will have to weigh very carefully these purported benefits in any one instance: if they serve compelling interests, perhaps discrimination on the basis of family status is justifiable.  But these compelling interests cannot be assessed in the abstract and must be pursued in the specific context of each burden, an analysis we undertake in the next Part.

Here we simply wish to reiterate that we don’t deny that one could reframe the inquiry to reflect how the criminal justice system seeks to promote “family values.” But in light of the fact that our work last year looked at the benefits the criminal justice system extends to defendants based on family status, we don’t think there is something inherently biased when we look at the burdens placed on family ties here.  Thus, to our minds, the inquiry at the core of this article is an essential one, and we can learn something important by asking three questions: what goals are we trying to advance when we impose a family ties burden on an individual for the conduct in question; second, does the sanction create benefits that can be more fairly distributed; third, does the sanction trigger unjust consequences that could be ameliorated through more careful drafting or revision?

B.                            Revisiting the Costs of Family Ties Benefits

                Given the various benefits and privileges afforded on account of family ties with which we concerned ourselves last year, it might be thought that the burdens more generally help to balance out this discriminatory treatment pervasive within the criminal justice system.  There is undoubtedly some force to the intuition that benefits and burdens might help balance each other out, or that both might serve a similar “protective” function.  But this analysis cannot be generalized too quickly. Consider: how do sentencing discounts for those with family ties and responsibili-ties (a benefit we examined in our framework last year) rest consistently with criminalizing those engaged in non-payment of child support or adultery or po-lygamy? The former is protective of family care-giving functions from a defen-dant’s perspective once he’s been accused while the others can be deemed “pro-tective” of such functions only from an ex ante perspective—before someone knows he’s going to commit that crime, because once the conduct in question has occurred, the care-giving potential of the defendant is impaired. Viewed together, these benefits and burdens are in tension. Moreover, since legislatures and scholars have not looked at these benefits and burdens systematically as designed to be off-setting, critical and independent analysis is warranted.

When we took to analyzing family ties benefits previously, we scrutinized the plausible justifications for getting the state to help the family. As before, it is critical to appreciate how the family both molds the individual and reduces the states’ burdens. Indeed, without repeating our views unnecessarily, we recognize that the institution of the family helps create and fashion our individual identities, our “historical,”  “constitutive”  or “situated”  selves that simply and utterly depend heavily on our families and our familial associations for survival and sus-tenance. 

Moreover, since the state either cannot or will not live in accordance with what Plato’s Republic idealizes for the Guardian class – no private families with all children being held in common  – the state needs to keep families together and solvent.  The state can draw from the rich panoply of resources naturally furnished and expended by the family in creating good citizens.  By giving families special support, the state can economize on expenditures that it would otherwise be forced to bear in educating its citizenry and preparing its members to contribute to the stability and flourishing of the regime. 

This is a crude way of thinking about the matter, to be sure.  But it is one that must have a grain of truth: the state simply cannot afford to provide all the services families routinely provide relatively efficiently and effectively, so it “subcontracts” such work to the family – and “pays” it accordingly.  Families will not be able to provide care services completely for free – and can rightfully demand that the state (which is parasitically living off of its successes) subsidize the hard work of helping children “take their place as responsible, self-governing members of society.”   The state helps itself when it subcontracts cheaply the “formative project of fostering the capacities for democratic and personal self-government”  – and leaves it in generally reliable hands.               Despite the recognition the family’s care-giving role properly warrants, and the risk states incur of irrelevance and illegitimacy when they fail to treat persons as constituted selves, we ultimately concluded that general arguments rooted in communitarian political theory were insufficient to underwrite special treatment of the family in the criminal justice system. In particular we noted how these benefits on account of familial status cause risks of inequality, gender bias, inaccuracy, and more crime. Consequently, we expressed hesitation and skepticism toward the benefits distributed on the basis of family status throughout the criminal justice system. It is, after all, a most basic liberal principle that punishment be meted fairly and accurately, without fear or favor for those of different status.

These reasons for our skepticism toward the distribution of family ties benefits inform our approach to thinking about family ties burdens. Specifically, we must address whether and to what degree the normative considerations we identified earlier in connection with families ties benefits – patriarchal domination and gender bias, inaccuracy, inequality, and crime-creation – apply in the context of family ties burdens. 

It is easy to see relatively quickly that two of these considerations – crime-creation and inaccuracy – are mostly inapplicable in the context of family ties burdens.  In other words, unlike family ties benefits, family ties burdens rarely trigger concerns that they will create more misconduct or impede the accurate prosecution of the guilty and the exoneration of the innocent.   Although it may be possible that these two costs will be implicated by a hypothetical burden which we haven’t identified here, we do not see them as generally applicable in the case of burdens and do not think it would be appropriate to criticize family ties burdens along these dimensions, as was justified generally in the case of family ties benefits. 

But two of the normative considerations that we identified earlier do seem generally relevant when analyzing family ties burdens: inequality (and its relationship to morally arbitrary discrimination) and gender bias.  Notice that although inequality and gendered effects of a neutrally-drawn criminal justice regu-lation would not come within the ambit of our discussion – for family ties burdens as we define them must facially discriminate against family status – they are normatively relevant effects in judging the viability of any particular burden.  So even though omissions liability, bigamy, and nonpayment of child support law are, for example, written in gender neutral terms, once they are identified as facially discriminatory against family members, it’s appropriate to ask whether they have effects that reinforce gender stereotypes.

1.            Inequality and Discrimination

                                                In many contexts, burdens risk treating similar conduct unequally – and affirmative discrimination against the family is hard to justify.  For example, incest prohibitions affecting consensual sexual relations among adults restrict liberties that would otherwise be unregulated and generally protected.  Non-payment of a debt becomes a criminal offense in one context (child support) while it remains a civil action in most others (e.g., bankruptcy).  Although it is obvious through the exaction of burdens that we are often seeking to have family members take special precautionary measures to protect vulnerable potential victims, the tool of punishing on the basis of familial status alone is surely worth scrutinizing more carefully, since it does implicate norms of equality and nondiscrimination that a liberal criminal justice system should embrace.   

                                                Indeed, as a general matter – and in ways we will expand upon presently -- we tend to think that targeting familial status is an overinclusive and underinclusive approach to achieving sound policy objectives.  It may make sense for the criminal justice system to try to protect our most vulnerable members of society; but many types of citizens are vulnerable and targeting the family is not a rational or remotely narrowly tailored means to achieving that objective.  Nothing about estranged family members, for example, necessarily renders them especially vulnerable to one another to justify the imposition of special burdens upon offenders and potential offenders. Thus, family ties burdens could be overbroad if they penalized, say, estranged siblings with omissions or vicarious liability. By contrast, many vulnerable citizens warrant protections that the criminal law currently and irrationally renders unavailable, such as the families of same-sex couples; thus family ties burdens that don’t protect people who would agree to such protection and such burdens ex ante, should be reconfigured to promote the underlying value of voluntary care-giving relationships.

                2.                            Gender Bias

                Imposing a burden or penalty on an individual in the criminal justice system solely on the basis of family ties enmeshes the state in an expressly normative dispute over who counts as family and who does not.  And the position the state takes is one that is not merely conventional: it also threatens to promote a discriminatory and gendered set of policies.  Thus, as alluded to above, in the context of family ties burdens, large numbers of persons who might (justifiably, in our view) see themselves as entitled to benefit from the imposition of family burdens (and family ties benefits, of course) are excluded. When the state makes choices regarding families, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, use of the family as traditionally delineated is an under-inclusive (and at times, over-inclusive) mechanism to distribute the tangible and expressive benefits conferred by the criminal law when it targets persons with unusual treatment on account of familial status.

                More, in certain circumstances, family ties burdens are used in ways that reinforce gender stereotypes.  Although routinely drafted in gender-neutral terms, many family ties burdens raise substantial questions about policing gender relations more broadly – and once a burden is identified, it seems to be fair game to analyze whether the burden is contributing to gender bias more systematically.  We think that omissions liability, bigamy, and nonpayment of child support all show this pattern.

C.            Uncovering a Structure of Family Ties Burdens: Voluntary Care-giving

Many of the family ties burdens we find in the law – omissions liability, vicarious liability, bigamy, adultery, non-payment of child support – reflect a pat-tern that, to our mind, hasn’t been sufficiently emphasized.  This pattern suggests an internal structure critical to rethinking family ties burdens in our criminal justice system. Specifically, most burdens that exist occur in the context of relationships that have a voluntary or “opt-in” nature, meaning that the individual who faces the burden imposed by the criminal justice system has consensually entered into the relationship that serves as the basis of potential subsequent liability for doing or forbearing from actions that would otherwise be lawful.  Some applications of incest prohibitions break out of this pattern, to be sure. But if you were to look at the dominant practices with respect to family ties burdens, they are imposed on defendants in two kinds of relationships: spouse to spouse and parent to child.

Though we don’t see this pattern as itself authoritative, we do think it can be justified and illuminating in various ways. First, when family ties burdens are limited to relationships reflecting this voluntary nature, we find the imposition of these burdens more attractive. The voluntary nature at the heart of these obligations takes at least some of the bite out of the charge of discrimination: if parties freely choose relationships that themselves trigger liability after fair notice, liability on the basis of family status seems more defensible, at least up to a point. That’s because there’s a basic trade-off going on: if you want to take advantage of the ways in which society privileges building family relationships through institutions of distributive justice (say, through tax credits), then you need to be aware that society is placing greater burdens on you to ensure you assume your care-giving responsibilities. By contrast, extending family ties benefits only to those who have opted in to relationships of care-giving seems to discriminate more against those who are deprived of the opportunity to develop those relationships of care-giving. In other words, not everyone can choose (or wants to choose) to marry or procreate—and those who do not make this value-neutral choice should generally not be treated disfavorably by the criminal justice system. 

To be sure, voluntary relations can be fuzzy at the margins:  Have we really chosen our in-laws even if they have not chosen us?  Have we always really chosen to have children, when a pregnancy is the result of failed birth control methods?  Still, we think the relatively easy cases of spouse and parent-child help expose an important insight about appropriate burden distribution: that they generally seem more palatable in the context of voluntary relationships of care-giving.

Why should voluntariness matter?  For one thing, restricting the imposition of family ties burdens to those who choose to bear them is a way of respecting one’s autonomy; if we forced all sorts of obligations on family members who didn’t choose to enter a relationship of care with someone, we’d be impinging on their reasonable liberty interests. 

Additionally, the special obligations some family ties burdens impose can be understood in terms of signaling theory.  On this view, family ties burdens are appropriately imposed on someone who has voluntarily entered into and maintained a relationship because by their consent to that relationship they are signaling to others that they are going to be “first responders;” society can then trust them to look after the people with whom they have created a covenant of care-giving. The germ of this idea appears in omissions liability/duty to rescue law. 

Generally, in the absence of a contractual basis, one doesn’t labor under a duty to rescue other people.   But there are widely acknowledged limits to this no-duty principle. For instance, if Alice is walking by the beach and sees Charlie drowning, and then waves off Bob, who was also on his way to rescue Charlie, Alice is now under a special obligation to go rescue Charlie. She can’t just walk away at that point absent special justification  (like a new threat to her life).  The actions of marrying or parenting can be interpreted to be creating similar statements about responsibility. When a person enters into a covenant of care in the form of marriage or parenting, she is telling society that she will be a “first responder” to the person with whom she’s covenanting when that person is in danger.

It follows, we believe, that if voluntariness matters, then a “family ties burden” should not be placed on someone who has had a familial status imposed upon him. Consider siblings.  Almost no child freely chooses whether or not to have a sibling; that decision is generally left up to his parents. Unsurprisingly, the law ordinarily does not impose special obligations upon an individual to take or face risks on a sibling’s behalf. Other family relations fall into the same category; almost no one freely chooses whether or not to have an aunt, uncle or cousin – and when people do take on an unrelated aunt or uncle, the law generally ignores that status.

By this logic, it seems clear that some family relationships are involuntary in the sense that they were not deliberately entered into by the relevant parties.  The more difficult question is whether there are family relationships that are in fact truly voluntary. At first blush, the most obvious example of a voluntary relationship would seem to be that of spouses – it is certainly true for most cultures in this country that no one is forced to marry, and individuals may freely choose their own partner. To be sure, some human trafficking victims are coerced into marriage, but that is an instance of legal wrongdoing, not an instantiation of what we think to be marriage’s nature. Thus, although some have argued that social and economic forces render marriage compulsory,  we think such conclusions are generally unpersuasive.  Certainly, there is strong social and economic pressure to marry; but this doesn’t vitiate the kind of voluntariness that can render people’s decisions their own for the purposes of being responsible to take on burdens and benefits. Current government policies and social norms undoubtedly reward an individual’s decision to marry, but these rewards nonetheless stop far short of compelling an individual to do so. By the same token, some government policies and social norms also prevent an individual from marrying a person of his or her choice, and that, to our mind, is an undue intrusion of the state, since it denies opportunities and expressive benefits on grounds we find morally irrelevant.

As to the parent-child relationship, we see this relationship as generally a voluntary one (whatever pressures exist to reproduce).  A mother who does not wish to parent is legally free to use very reliable birth control methods – and she may terminate her pregnancy or place a child up for adoption. To be sure, there are complications with this general observation:   Most obviously, fathers have long been held by courts to be forced to parent against their will in the sense that they are subject to child support obligations even if they take affirmative steps to avoid fatherhood.  Still, for the most part, these complications are indicative of the exceptions, not the general case. Most parents want and choose their children.  This is not to say that the laws that attach to parents as family ties burdens are always justified.  Rather, the fact that these relationships are usually voluntary helps us understand the underlying structure of burden allocation by the criminal justice system.

D.            Overcoming Family Status through a Focus on Voluntary Care-Giving

Notwithstanding the ambiguities that might attach in particular situations regarding whether a familial relationship is voluntary, using voluntariness, rather than familial status, as a basis for distributing these kinds of obligations is initially quite attractive. Indeed, using voluntariness as a criterion helps us solve the under- and over-inclusive problem that family status alone triggers. Importantly, it allows us to encompass those who view themselves as obligated to others through their own actions regardless of the delineations of an “acceptable” family established by the state. Thus, same-sex partners, unmarried heterosexual partners, grandparents caring for extended family members, even platonic or polyamorous friends living together in a committed care-giving relationship—all of these people are engaged in voluntary relationships who may both want and deserve the protections and expressive benefits of burdens solely allocated on the basis of family ties in our current policy environment.

But is voluntariness alone sufficient? How do we go about limiting the ex-tension of such burdens that the state is expected to prosecute with its criminal justice resources? Can a child choose his third closest friend from kindergarten as the person to whom he owes a special obligation of protection?  If she does, should scarce criminal justice resources be used for these purposes?  We need answers, in other words, for both who decides and by what criteria that a particular relationship should be deemed a voluntary relationship in which the party is willing to assume obligations toward another. Moreover, we also need answers to whether an obligation can be imposed even in the absence of a voluntary relationship.

In our view, voluntariness as a stand-alone criterion is insufficient for as-sessing whether it is just and attractive to impose or enhance criminal penalties on the basis of a relationship. We suggest that voluntariness be used in conjunction with whether the relationship exhibits a relationship of care-giving.  Our sense is that many sorts of people assume these care-giving roles and not all of them are familial in nature.  Roommates, for example, might choose to adopt an ethos of mutual care over a period of time. If that relationship is freely entered into and maintained, we don’t see why they shouldn’t be able to enter into the compacts of care that characterize spousal or parental relationships.   Thus, if we are going to be recognizing care-giving responsibilities they should not be restricted to ones that are familial. 

That said, we do think one’s familial status qua spouse or parent to a child may be presumptively used to establish that the relationship involves voluntarism and care-giving. After all, one almost always chooses their spouses and having children is also a choice, generally speaking. The presumption in other relationships would not attach but the connection of care-giving could be established by other evidence.  In the end, then, familial status as such would be neither necessary nor sufficient to justify a “family ties burden.” For, in our scheme, even a parent might be able to rebut assignments of family ties burdens when the child lives far away with grandparents or with one parent and a step-parent.

That raises the question of whether voluntary assumptions of responsibility can ever be terminated.  Imagine that after years of enduring abuse, one has lost all affection for one’s spouse.  Still, the law still places a burden of omissions liability on the reluctant spouse.  What is to be done?  Or imagine giving up one’s biological child to a friend across the country because money is tight.  Should the biological parent be punished on account of family status under vicarious liability laws?

In the context of married couples, divorce would be the appropriate way to signal an opting-out of the special duties of marriage.  And in the context of the parent giving up his or her child to friends across the country, termination of pa-rental rights is the way to opt out of the special duties of parenthood.  But it isn’t obvious to us that these potentially costly signaling mechanisms should be the only ways to break the covenants that trigger the special responsibilities of voluntary care-giving.  Although for the average dyad (whether parent-child or spouse-spouse), the legal opt-out might not be unduly burdensome, there certainly will be cases when it seems very unfair to require divorce or termination; perhaps in ex-ceptional circumstances parties to these special relationships ought to be able to show that they should be deemed “equitably” divorced or terminated for the pur-poses of the family ties burdens.  One way to determine the bona fides of these parties is to see whether they have tried to capture family ties benefits through either the criminal or the civil system (say by claiming a dependent for tax purposes); in such situations, we can envision the very rare case when parties should be saved the pain and cost of an official divorce and termination.

Spousal relationships, however, should not be treated the same as parents’ obligations toward their children. After all, minor children cannot avoid their own vulnerability.   Thus, although letting spouses opt out in their adulthood doesn’t generally offend a sense of fair play, letting parents ditch their vulnerable children without their consent (for minors can’t always consent) quite centrally violates the most basic tenets of what many think parents owe their children.   But that is just another way of specifying why allowing parental opt out without termination should be even rarer than allowing spousal opt-out without divorce.  Nevertheless, just because it should be rare doesn’t mean it must be categorically proscribed.  Indeed, if we are right that voluntary care-giving underwrites and furnishes justificatory principles for status-based burdens in the criminal justice system, we should seek ways to narrowly tailor the family ties burdens to capture only the right kinds of offenders.  If we had to give up our children to good friends for several years because of illness or incapacitation, for example, it would seem sensible, at least to some, to enable one to opt-out of certain special parental duties short of terminating one’s parental rights. But all things considered, that should be a high bar to surmount; the obligation to raise a child should not be blithely compared to joining a bridge league.

For most other relationships outside of child-rearing, however, we think a registry could be created in which people opt-in and opt-out of relationships of care-giving so long as they provide notice to and secure consent from the affected parties.  This strategy would allow adults to select a discrete number of additional persons eligible for receiving the adult’s responsibility.  If unrelated roommates wanted to sign up they could do so, signaling commitments of care for each other, to each other, and to those around them.

To be sure, there is something cheaply administrable when the law selects simply a few family status relationships instead of having to create a registry for relationships of voluntary care-giving. But it does not seem that much more difficult to use a registry of the sort we describe,  especially when it lends promise to the prospect of all sorts of people pledging their hearts and sense of obligation to others around them. Moreover, as alluded to above, the administrability of this system can be rather cheaply achieved by requiring that spouses and children occupy a special role with respect to family ties burdens—i.e., certain duties can be imposed on parents and spouses to ensure they meet the responsibilities they agreed to when they volunteer to be a spouse or parent.  Our registry network, in other words, would supplement the core relationships of spousal and parental obligation, not supplant it.

In short, adopting a quasi-voluntarist approach to burden distribution in the criminal justice system harmonizes well with what we think the system appears to seek for itself, albeit imperfectly.  Moreover, it might provide for a better intellectual fit with the competing interests in promoting freedom and autonomy, which is thought by many to undergird the no-duty-to-rescue pattern of law.   Additionally, the difficulties associated with the under and over-inclusive nature of family status can be remedied in large measure by use of a registry where one can declare who counts within one’s sphere of accepted responsibility for the purpose of some of the crimes discussed here. This would strengthen voluntary assumptions of care-giving responsibilities (of which the family is sometimes a great example) rather than rely upon inflexible categories based upon antiquarian notions of status.

E.            Bringing It Together: How To Scrutinize a Family Ties Burden

                                In light of all these various considerations, we propose that family ties burdens – whether the ones we described in Part I or some others that might be contemplated – undergo scrutiny, using a set of normative speed-bumps designed to track our discussion here. Our general approach in light of the foregoing is that special criminal justice burdens based on familial status alone require extra justification. Perhaps unsurprisingly, just as we exhibited a tendency to be skeptical toward particular benefits afforded to the family in the criminal justice system in our Article last year, we are also inclined to protect individuals from penalties or burdens based simply on familial status.  However, because we are sensitive to the care-giving contributions that might stand in need of special protection from the state, we believe that many of the concerns people might have about abandoning family ties burdens can be addressed instead through careful drafting that substitutes attentiveness to voluntary relationships of care-giving in the place of familial status alone. In the context of family ties benefits, we were more skeptical to them be-cause of the costs they imposed on the criminal justice system, even if they were re-drafted in a way that was somewhat neutral to family status. Re-drafting along family-neutral grounds was, for us, a decidedly second-best alternative in those cases where the criminal justice system’s commitments to equality and accuracy were impeded. But in the context of burdens, as we will see, most of these costs are either not triggered or, if they are, they are substantially ameliorated when drafted along terms that respect voluntary care-giving rather than family status alone.

                Thus our skepticism toward family ties burdens does not entail eliminating all such burdens. Instead, we propose that such burdens undergo a set of searching inquiries. 

                First, we propose that those seeking to impose a burden on someone in the criminal justice system on account of that person’s familial status should ask: to what extent does the family ties burden in question trigger concerns about gender bias or inequality and arbitrary discrimination — the normative costs of family ties benefits that retain applicability in the family ties burden context? (If there are concerns about accuracy or crime-creation, then those too should also be weighed. )  But if the burden was not imposed only on individuals based on their family status, it is not a family ties burden in the sense we mean, even if the policy ends up substantially hurting those with families.

                Second, assuming the burden implicates one or more of these concerns, to what extent does the penalty or liability vindicate a compelling state interest that justifies the use of the burden in the criminal justice system? In other words, given the disruption the burden promises to wreak on other values (like, say, nondiscrimination, autonomy, liberty, and equality), what are the countervailing benefits promised by its imposition?

                Finally, and most critically important, we must ask whether there are other less troubling means — means that can be crafted in terms that are neutral (or more neutral) to family status — available to protect the interest underlying the burden? In situations where the case in favor of the family ties burden appears to make sense, we argue that the family ties burden should not be imposed on the basis of traditional familial status, but rather on the basis of care-giving relationships of autonomous choice. Thus, burdens that are imposed on spouses or parents for the crimes of their spouses or children may be permissible, but burdens placed on individuals on account of crimes committed by their siblings (absent special circumstances or voluntary acquiescence) would be inappropriate.  This will undoubtedly leave some questions open at the margin – but we can live with some indeterminacy, especially once we announce a more specialized focus on voluntary relationships of care-giving. 

This kind of scrutiny will not, to be sure, resolve all questions; inevitably disputes about the strength of competing claims will persist.  But, as we hope we achieved last year in our systematic inquiry into family ties benefits, we hope to do some important work in helping clarify the problems under consideration and alerting lawyers, policymakers, and judges to some of the potentially hidden costs of family ties burdens in the criminal justice system.