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Wednesday, September 15, 2010

Privilege or Punish Book Club (SEALS version): Elizabeth MacDowell (UNLV)

I’m delighted to continue this discussion about Dan Markel, Jennifer M. Collins, and Ethan J. Leib’s important and provocative book, Privilege or Punish? Criminal Justice and the Challenge of Family Ties, with some of my co-panelists from the SEALS Workshop on Criminal Law and the Family. Markel, Collins, and Leib make a unique contribution in terms of inquiry and method in their examination, using legal analysis and political theory, of formal criminal laws that treat defendants differently based on family status. Both the scope of the project and the method of its execution are painstakingly defined by the authors. But the principles of exclusion are especially tricky on a project like this one, at least at the margins, creating one of the book’s greatest points of challenge.

One area where the boundaries are unclear is domestic violence, which the authors have excluded from their primary inquiry due to the fact (they explain in the book and subsequent forums) that most jurisdictions no longer limit applicability of domestic violence laws based on family status alone, and treatment of the crime is uneven in terms of whether defendants are subject to criminal law burdens or benefits. A second grey area (not by any means unique to this project) is the appropriate scope of the normative inquiry. The authors analyze the laws at issue with reference to criminal law functions and external normative principles. But given the distance between the law on the books and the law in action, where does one draw the line?

While I don’t necessarily question the decision to exclude domestic violence from the statutes examined that facially differentiate based on family status, post-adjudication diversion programs used in domestic violence cases nonetheless provide an illustration of the ways in which benefits and burdens cannot necessarily be determined with reference to the formal law alone. In Privilege of Punish, the authors use such programs as an example of treating domestic violence more leniently than similar crimes between strangers. Diversion programs can indeed benefit defendants, by allowing those who complete the program successfully to avoid a criminal record and enhanced penalties if there is subsequent domestic violence offense. However, this isn’t the whole story. Diversion also creates significant due process burdens for defendants.

As Prof. Tamara Meekins has written about post-adjudication diversion programs more generally, a criminal defendant makes the decision whether or not to enter diversion early on in the case, before his or her attorney is fully informed about the case and without full knowledge of the results of failing to successfully complete the program. The defendant may also be under coercive pressure to accept diversion, especially if in jail and unable to make bail. Moreover, diversion is often offered in the context of “problem solving courts” that alter the adversarial process in ways that thwart effective assistance of counsel in making this and other crucial decisions (e.g., by implementing a “team approach”). In this light, diversion can hardly be considered a benefit to criminal defendants charged with domestic violence. (Check out Prof. Meekins’ illuminating article, Specialized Justice: The Over-Emergence of Specialty Courts and the Threat of a New Criminal Defense Paradigm.)

Of course, coercion may be present in other plea bargaining scenarios and in other types of cases as well. But the impact on domestic violence cases may be particularly significant. To the extent such policies add gravitas to defendants’ perceptions of mistreatment in the criminal justice system, research on the relationship between procedural justice and recidivism suggests they may increase rather than decrease crime. More generally, high rates of plea bargains in domestic violence cases may facilitate crime by undermining the victim’s confidence in the system. To the complaining victim, plea bargains of all types can look like the defendant is getting off easy. If, as a result, victims are less likely to report future crimes or cooperate with authorities in a future case, these policies indirectly may increase crime in this way as well. Such practices may also increase the potential for inaccuracy in the form of false convictions (including of victims of domestic violence) by focusing on obtaining plea agreements rather than correctly identifying perpetrators and holding them accountable.

In these ways, burdens created by diversion programs may undermine criminal justice functions with respect to domestic violence in ways that run counter to general principles. As Markel et al observe, criminal law burdens generally don’t implicate normative concerns about incentivizing more crime. But such generalizations do not apply with regard to burdens imposed in domestic violence cases as a result of due process failures, an inquiry that is doubly outside the scope of Privilege or Punish.

I am not the only one to push at the boundaries of the inquiry the authors have established and executed so well. (For example, see Prof. Emily Sack’s post in today’s PrawfsBlawg, Prof. Alafair Burke’s review essay, When Family Matters, available here, and review essays by Prof. Douglas Berman and Jack Chin, available here.) However, unlike some other responses, my purpose is not to argue that additional laws implicating families or normative criteria for their evaluation should rightly have been included. Instead, as someone deeply sympathetic to the enterprise of policy argument based on normative principles as well as empiricism, I am very interested to hear the authors’ views on the basis, in normative projects like this one, for drawing the line with regard to what factors will be considered from the larger socio-legal landscape within which law is enacted.


Posted by Elizabeth MacDowell on September 15, 2010 at 11:49 AM in Books, Criminal Law, Privilege or Punish | Permalink


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Very interesting book and post.

Generally speaking, as more of family law moves away from a strict construction of family status, I think it will be fair, based both on theory and practice, to describe domestic violence as firmly at the intersection of criminal and family law.

Posted by: Margaret Ryznar | Sep 15, 2010 1:41:10 PM

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