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Wednesday, October 29, 2008

Criminal Justice and Family Ties in Action

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book I'm doing with Ethan and Jennifer Collins, the central questions we ask are what role does and should a defendant's family status play in the criminal justice system. Despite a wide array of family ties benefits and burdens, where defendants are treated differently on account of their family ties and responsibilities, we are more often than not quite skeptical about the use of family status itself as a basis for distributing these benefits and burdens. Through the course of our research, we've become perennially interested in the various ways family interests intersect with those of the criminal justice system.

Today, thanks to the indispensable Doug Berman, I just came across US v. Woods, this fascinating 5th Cir opinion vacating a supervised release condition (SRC) imposed by the district court on a defendant prohibiting her from living with persons she was not married to or related to by blood. The district court's SRC is not a straightforward benefit or burden under our analytic framework. The defendant is appealing the SRC and so to her it's not a benefit -- although if the alternative were prison, perhaps she would view it as such. Thankfully, the appellate court realized that prison in this case is not the appropriate baseline to use.  (Nor is it an instance of punishing the defendant's family status; the defendant doesn't face a unique burden attributable to her family status, the way say, omissions liability attaches to spouses but not paramours.)

Despite the difficulty in categorizing this particular SRC as a family ties benefit or burden, I am heartened to see that the higher court realized why this SRC was not sufficiently narrowly tailored to achieve its underlying purpose. One of the primary normative goals we have in our project is to persuade courts and policymakers to move away from relying on family status when making decisions in the criminal justice system about benefits or burdens and instead examine a broad range of caregiving obligations. The lower court's reliance on "ceremonial marriage" and "blood" relationships to determine who can live with the defendant upon release is indicative of the regime we're seeking to overthrow in the law...and I'm very pleased to see we have allies on the Fifth Circuit in our endeavor.

Posted by Administrators on October 29, 2008 at 10:19 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib | Permalink


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Perhaps to our demerit, we don't much look at juvenile courts--though there is a very exciting new book out on the subject here by Buffie Scott and Laurence Steinberg: http://www.amazon.com/Rethinking-Juvenile-Justice-Elizabeth-Scott/dp/0674030869

Our focus is primarily on how the "regular" criminal justice system for adults uses family status as a basis for benefits or burdens. Thus, we look at issues including: evidentiary privileges, sentencing discounts, exemptions from fugitive harboring laws, omissions liability, parental responsibility statutes, nonpayment of child or parental support laws, incest, polygamy, and adultery...among some others.

Posted by: Dan Markel | Oct 30, 2008 12:29:50 AM

Does your research or book dive into juvenile court at all? That would be a pretty interesting study, though possibly very different from the adult world. Family ties and such things play such a huge role in the child's placement pre-trial and can nearly determine the child's sentence if found guilty.

Posted by: guest | Oct 29, 2008 10:31:53 PM

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