PrawfsBlawg

Fixing Direct Democracy

Zocalo Public Square asked a number of scholars the following question:  "What is the single best thing we can do to improve the initiative process?"  I'm not sure there is a quick fix, but here was my answer:

In democracies, it is both common and correct to say that “the people” should rule. But democracies differ in their understanding of who “the people” are–and how they are represented. In most democracies, elected leaders stand in for and represent “the people.” In direct democracies like California, by contrast, the polity is designed to let “the people” represent themselves with immediacy from time to time, reasserting their will over particular policy areas, disrupting elected leaders’ assumptions that they can always vindicate the voice of the populace with their democratic mandates from a prior Election Day.

It isn’t a surprise that “the people” are not always up to the task. Although there is no doubt that conventional representative democracy has its flaws, the “wisdom of the crowd” is just the flipside of “mob rule.” Under the conditions most citizens find themselves in modern mass society, they have neither the time nor the inclination to engage with the issues that find themselves on the ballot. Most do not deliberate with one another and most cannot get sufficiently informed about the policy debates. But it isn’t that citizens are incompetent. It is that we don’t design the institutions of direct democracy in a way to promote real deliberation and thoughtful decision-making.

All that could change with one simple fix.

Instead of asking nearly 40 million people what they think about a question of policy, ask a much smaller random subgroup of “the people” what they think. When we want criminal defendants judged by a jury of their peers, we don’t ask everyone to vote: we ask a cross-section of the whole—12 people—to take time out of their private lives and serve their governments to decide if an individual in their midst should lose his or her liberty or life. When we ask “the people” to decide policy in direct democracy, it should be done by a scientifically stratified random sample of 535 people that is empanelled into jury service for the task at hand.

As Tocqueville wrote, the “jury is both the most effective way of establishing the people’s rule and the most efficient way of teaching them how to rule.” It is time to think of our exercises of direct democracy like policy questions sent out to a jury of our peers. Under those conditions, it won’t be money or misleading campaigns that decide ballot questions: it will be the deliberation of lay citizens who have all the right incentives and institutions to think through important questions with a manageable group of their peers, who are similarly motivated to produce an authentic, informed, and issue-specific voice of “the people.”

Ethan J. Leib is author of Deliberative Democracy in America: A Proposal for a Popular Branch of Government. He was a professor of law at the University of California’s Hastings College of the Law from 2005 to 2011. He is now a professor of law at Fordham Law School in New York.

My latest academic treatment of popular democracy, forthcoming with Chris Elmendorf in the California Law Review, can be downloaded here.

 

Some Critics Weigh In on Privilege or Punish (Version 2: Yale LJ)

As alluded to almost a year ago, the April 2010 issue of the Yale Law Journal (website) now has links to two very interesting review essays of Privilege or Punish: Criminal Justice and the Challenge of Family Ties, my book with Jennifer M. Collins and Ethan. The first essay is by Prof. Alafair Burke (Hofstra) and it is titled, When Family Matters. Go ahead and throw Alafair a few downloads over here on SSRN. The second review essay, by Professors Alice Ristroph (Seton Hall) and Melissa Murray (Berkeley), is called Disestablishing the Family. You can download that piece over here on SSRN.  

Initially these reviews were supposed to appear with our reply essay in the same issue of YLJ under the "Features" rubric, but b/c of some innocent snafu, our response to these two rich and provocative pieces will actually appear a bit later this spring--I believe in the June issue. For those of you keen to see it beforehand (hi sis!), we've just posted a penultimate draft of that piece on SSRN, and it is entitled Rethinking Criminal Law and Family Status. I hope to blog a bit more about the substance of this exchange over the coming weeks. In brief, though, Part I of our Essay defends our "equal protection" model for analyzing family status against the "j'accuse" of statism made by R-M. Part II plays offense against R-M's proposed model to disestablish the family, and Part III engages Prof. Burke's critiques about the book's argument and scope. Needless to say, we are grateful to YLJ for hosting this exchange and to Alice, Alafair, and Melissa for the effort and verve with which they've engaged our work.

P.S. As mentioned before, you can find another robust exchange of ideas about the arguments in our book in this symposium in the New Criminal Law Review (featuring criminal and/or family law gurus Doug Berman, Naomi Cahn and Jack Chin).

Some Critics Weigh In on Privilege or Punish (Version 1: NCLR)

Over at SSRN, I've just posted a bundle of essays that comprise the New Criminal Law Review's symposium on my recent book with Jennifer Collins and Ethan Leib, Privilege or Punish. We are grateful to Professors Doug Berman (OSU, sentencing guru); Naomi Cahn (GW, family guru); and Jack Chin (UArizona, general guru) for their insightful and sharp reactions to our book. The exchange also offers our reactions to these critical challenges in a reply essay. Many thanks to Lindsay Farmer and Mark Penrose and the other good folks at the New Criminal Law Review for hosting this symposium in their pages of the Winter 2010 issue of Volume 13.

The abstract appears after the jump, along with the titles of the essays.

This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled *Privilege or Punish: Criminal Justice and the Challenge of Family Ties* (Oxford 2009). In addition to the three review essays, the collection includes an essay by the book's authors that serves as a reply to this set of critiques. Collectively, we are grateful to the New Criminal Law Review, which is hosting this collection in an upcoming issue.

The essays are titled, respectively:
Berman: 
DIGGING DEEPER INTO, AND THINKING BETTER ABOUT, THE INTERPLAY OF FAMILIES AND CRIMINAL JUSTICE

Cahn:
PROTECT AND PRESERVE?

Chin:
MANDATORY, CONTINGENT, AND DISCRETIONARY POLICY ARGUMENTS

Collins, Leib & Markel: 
(WHEN) SHOULD FAMILY STATUS MATTER IN THE CRIMINAL JUSTICE SYSTEM?

Elmendorf and Leib on Citizens' Budgets

We had a false alarm at the hospital last night, which explains why I'm only now getting to share my "other" excitement for the day: Ethan Leib and Chris Elmendorf (UC Davis Prawf) have a thoughtful op-ed on deliberative decisionmaking in the budgeting process; it is in today's NYTimes. Here's the link. I've reproduced it after the jump. Congrats to both Ethan and Chris!

Budgets by the People, for the People

By CHRIS ELMENDORF and ETHAN J. LEIB

NEARLY a month after the June 30 deadline, California’s Legislature and governor have finally agreed on a budget for the new fiscal year. The embarrassing debacle of paying the state’s bills with i.o.u.’s will come to an end — at least for a while. Though Gov. Arnold Schwarzenegger had pledged not to “kick the can down the road,” the budget he intends to sign today relies on $8 billion in accounting and revenue gimmickry, virtually guaranteeing another fiscal crisis next year.

For states as well as families, hard economic times require difficult choices. But some states find themselves in budget battles even when they don’t have the bad economy to use as an excuse. California is the prime recidivist, but since 2002, Connecticut, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Virginia and Wisconsin have also failed to close the deal on a budget on time. Government shutdowns resulted on five occasions.

Budget breakdowns most often occur under conditions of divided government — when Democratic and Republican lawmakers must compromise with one another to get a budget passed. Yet many voters like divided government, and for good reason. Distrusting of the extremes in both parties, these voters want their states to follow middle-of-the-road fiscal policies.

California’s Constitution has long required the Legislature to adopt a budget with a two-thirds vote; eight other states now necessitate supermajorities for some budget items. Such rules effectively force the majority party to negotiate with the minority on the budget since it is rare for one party to win two-thirds of the seats in a state legislature.

In California and elsewhere, politicians and analysts have called for constitutional conventions to revise the basic charter of state government. Believing that fed-up voters will reject any reforms on which political insiders have left their prints, some have suggested that delegates to the convention consist of ordinary citizens selected at random in a process akin to being called for jury duty.

But jurors are given a pretty limited task. They decide one case at a time and their basic choice is binary: guilty or not guilty, victory for the plaintiff or for the defendant. It is probably wishful thinking to expect random citizens to redesign state government from top to bottom.

We suggest a more modest role for an assembly of ordinary citizens: breaking budget stalemates. Here’s how it would work. If the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens — one from each legislative district — would be convened to resolve the stalemate. Three competing budgets would be drawn up: one by the governor, one by the Democratic caucuses in the legislative branch and one by the Republican caucuses. (These proposed budgets would have to be finalized before the citizens were selected.)

For two weeks, the citizens’ assembly would hear from and question government leaders, policy experts, interest groups and other supporters and critics of the proposed budgets. The citizens would then deliberate among themselves and vote by secret ballot on which of the budgets to adopt. The vote would take place on the budgets as originally submitted; neither the citizens nor lawmakers would be able to make amendments. The winning budget would become law.

This arrangement would have a number of virtues. First, it would ensure that states adopt budgets in a timely fashion, protecting bond ratings and freeing lawmakers to attend to other important business.

Second, it would give the three institutional actors in the budgetary process — the governor and the Democratic and Republican caucuses — strong incentives to devise budgets that appeal to middle-of-the-road voters, not political ideologues or special-interest favor seekers. Citizens who participate in the two-week assembly would also learn an awful lot about their state’s fiscal situation and competing legislative priorities. These citizen participants would not be as susceptible to sound-bite misinformation as in more traditional exercises of direct democracy.

Our scheme would also do wonders for accountability. When budgets are adopted under divided government (or supermajority requirements), it is hard for voters to figure out exactly who is responsible for the shape of the compromises. If the upside of divided government is centrist compromise, the downside is weakened retrospective accountability at the polls. Our approach to budgeting promotes accountability because the enacted budget would unequivocally belong to “the governor,” “the Republicans” or “the Democrats.” Dissatisfied voters would know exactly whom to reward or fault when they go to the polls at the next election.

Finally, our proposal honors Americans’ insistence on a strong popular voice in government, without demanding too much of citizen participants. It would require them to perform only a fairly simple task: rank your preferences among three proposed budgets, after hearing out the proponents and opponents of each.

Elsewhere, citizens have already proven themselves able to make measured, well-reasoned decisions about budgetary issues in small-group deliberative settings. The Brazilian city of Porto Alegre has been doing participatory budgeting since 1989, which has helped to equalize severe disparities in the standards of living among its residents. In Zeguo Township, China, citizens have been convened through statistically random sampling to establish spending priorities for road, building and construction projects.

Here at home, our participatory budgeting procedure would not be a panacea. But it should result in timely budgets, tailored to the concerns of average voters, for which elected officials can be held to account. That’s definitely better than the mess we have now.

Chris Elmendorf is a professor of law at the University of California, Davis. Ethan J. Leib is a professor at the University of California Hastings College of the Law.

Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.

The Duty to Rescue and the Registry for Caregivers: A Guest Post

By STEPHEN J. DUBNER

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.

Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.

What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.

The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.

The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.

Our Take

The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.

As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.

One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.

For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.

Some Options For Designing Policy

One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.

A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.

Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.

What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.

In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.

It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.

We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.

Should Parents Get Sentencing Discounts? Our Third Freaky Post

Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Sentencing Discounts for Parents? A Guest Post

By STEPHEN J. DUBNER

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.

By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.

Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.

Time-Deferred Incarceration

For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.

During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.

Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.

As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.

Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,

Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

Here is their second post.

Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.

From an article in The Flint Journal:

Kelley Thomas’s 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad’s doorstep on E. Lorado Avenue in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County ProsecutorDavid Leyton. “The fact that he’s the father was discussed by my staff, and we will take that into consideration as the case progresses,” Leyton said. “It’s hard to turn your back on your own flesh and blood.”

The stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.

In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”

Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)

In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.

Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”

Rationales in Defense of the Exemptions

What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”

Our View (Against the Exemptions)

Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.

First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.

Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members

Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.

While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.

Finally, these statutory exemptions create perverse and dangerous incentives that Freakanomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”

For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

Legislating the Curriculum: The Podcast

At AALS this year, I was part of a great panel about incorporating legislation and regulation courses into the first-year curriculum.  We did a terrible job publicizing the panel -- and the speakers' names weren't included in the main packet.  In the event that you have an interest in the subject, the panel's podcast is available here.  Here was the description and the list of speakers:

Law schools are beginning to explore a variety of ways in which to integrate statutory and regulatory interpretation, and/or statutory and regulatory process, into the first year curriculum. This panel will critically explore several different models that schools have adopted to date: courses that focus on legislative process and statutory interpretation (Legislation); courses that focus on statutory and regulatory interpretation (LawMaking or LegReg); courses that use a specific subject matter as a vehicle for teaching statutory and regulatory interpretation and/or process; and courses that use the legal research and writing component as a vehicle. Panelists will focus primarily on what each model has to offer in terms of substantive content and pedagogical potential. Panelists will also address both challenges in teaching such courses and obstacles in getting such courses adopted in the first year curriculum, and offer some insights for overcoming such challenges and obstacles. One model that will not be discussed is a course that focuses primarily on administrative law and agencies.

Brudney James J. - Speaker
Driesen David M. - Speaker
Feldblum Chai R. - Moderator
Leib Ethan - Speaker
Mc Donnell Brett H. - Speaker
Stephenson Matthew C. - Speaker

If you need a copy of my recent Journal of Legal Education article on the subject, let me know.  Chai Feldblum set up an on-line resource at http://www.law.georgetown.edu/lawmaking/.

Gershon Schonfeld Leib

Gershon Schonfeld Leib entered the world on 12.22.08.  He joins Clementine Leib Schonfeld to round out our clan.  Clem was cuter -- is cuter -- but we're keeping Gershon anyway.

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.

Random Updates on Punitive Damages, Eighth Amendment and Family/Criminal Law Work

Hope everyone had a good weekend following the Wall Street crisis and the Noles game. I spent most of my time the last few days revising my draft of Retributive Damages, which I've just uploaded to SSRN over here. As I've mentioned before, this paper is the first in a series of three papers proposing a new way to think about punitive damages. The first one is coming out this January in Cornell Law Review, and the draft on SSRN reflects some of the edits I've received from the first round of editing there.  The sequel to that paper, How Should Punitive Damages Work?, is coming out later in the spring in the Penn L. Review. I'll be presenting the sequel paper this Friday afternoon at the Canadian Law and Economics Association in Toronto (and I hope local Prawfs readers will get in touch with me there; I'll be hanging out with Dave Hoffman and Erik Knutsen). With some luck, there will be some discussion of that sequel paper in Penn's excellent online companion, Pennumbra. (Please let me know if you're interested in participating.) In the next few months, I am also hoping to get the third part of the trilogy ready for the spring submission cycle, tentatively titled, Punitive Damages and Complex Litigation, and a book proposal unifying these ideas in a project called Fixing Punitive Damages.

I've also put up a lightly revised draft of Executing Retributivism, a paper I mentioned a few weeks ago about the implications of the Supreme Court's decision in Panetti v. Quarterman for Eighth Amendment review of cases involving both capital and non-capital punishments. I'm pleased to say that the piece will come out as an article in Northwestern U. Law Review in the late spring. In the next few months, I plan on growing the arguments in Part IV.A of the paper (about the implications of "negative retributivism" for non-capital punishment), which right now, are largely allusive in nature. I'll be presenting a version of this paper at Amherst College at an Austin Sarat-fest in a couple weeks and then revising it in light of comments around early to mid October. As a result, I'll be especially grateful for any comments that roll in prior to October 12. Also, Northwestern has an outstanding online companion, Colloquy, which sometimes publishes in both the print volume and online those responses to articles in the print volume. So if you're interested in participating in a Panetti-inspired forum, let me know.

Last, Ethan, Jennifer Collins and I are in the home stretch of getting our book manuscript together for Oxford University Press. The book is called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. If you have the time and inclination to read it in draft, we'd be very grateful for your comments; we'll probably have a draft to circulate in the next week or so. The book is scheduled to appear in the early spring of 2009, and draws on but revises much of the work we've done here (our Illinois piece) and here (our BU piece forthcoming this December). The BU piece, Punishing Family Status, is the subject of a mini-symposium with wonderful and provocative responses by Rick Hills and Michael O'Hear. Michael's response is available in draft here. Our draft reply, Voluntarism, Vulnerability and Criminal Law, is available here. Come 2009, keep your eyes open for a Privilege or Punish Roundtable coming to you. We'll have a great group of people to talk about the book and its themes at Law and Society in Denver (tentatively Naomi Cahn from GW, Elizabeth Scott from Columbia, and Melissa Murray from Boalt) and at SEALS in August (tentatively Alafair Burke from Hofstra, Jack Chin from Arizona, Alice Ristroph from Seton Hall, and Bob Weisberg from Stanford).

New Draft of Punishing Family Status on SSRN

I apologize for the relative dearth of blogging on my part the last few weeks. Between Vancouver and Prawfsfest! and SEALS, there has been surprisingly little time to start and/or finish a few articles and a book, and throw in some blogging. Though I have some thoughts and reactions I want to share on a host of topics in the near future, I'll use this post for familiar purposes :-)

Happily, Ethan, Jennifer Collins and I have just uploaded to SSRN a new draft of our piece, Punishing Family Status. You can download it here. This draft is a good bit more streamlined than the earlier draft and, unlike the earlier draft, it also addresses filial responsiblity laws, ie, a "family ties burden" in various states that require adult children to subsidize their indigent parents. We're also more explicit about the roles played in our account by voluntarism, vulnerability, and liberal minimalist approaches to criminal law. We were gratified to see that our paper was one of the top 10 most downloaded criminal law articles on SSRN the last few weeks -- but with only double digit downloads so far we have to assume everyone is enjoying the summer, or migrating to bepress to find their drafts!

The piece is currently scheduled to come out in the December 20098 (oops!) issue of the Boston University Law Review, where it will be the subject of a mini-symposium. Professors Michael O'Hear (Marquette; editor of Federal Sentencing Reporter) and Rick Hills (NYU) have graciously contributed shrewd and learned responses, and we have just finished a first draft of our reply. We will circulate that on SSRN pretty soon too. (Btw, big props/kudos to SSRN for making the uploading of new drafts a lot easier and quicker!!)

The current abstract of the piece appears after the jump.

This Article focuses upon 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 laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental liability statutes based on failure to supervise, incest, bigamy, adultery, and failure to pay child or parental support.

Part II then develops a framework for the normative assessment of these family ties burdens. We first ask how these laws can properly be understood to be "burdens." We then look at these sites synthetically and contextually to uncover a pattern underlying most of these family ties burdens: namely, they tend to serve the promotion and of voluntary care-giving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call "liberal minimalism." As Part II concludes, we articulate the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system.

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 but are still capable of promoting and vindicating voluntary care-giving relationships.

Punishing Family Status: More applications of the Family Ties Burden Framework

Today is the last installment of Punishing Family Status. The post below includes discussion of why we should abolish bigamy and adultery laws, among other things.

D. Bigamy

Our analysis of bigamy takes some of its cues from the preceding discussion of incest. We begin by noting that statutes simply criminalizing polygamy appear to infringe on the fundamental rights of consenting mature individuals to enter covenants of care with other persons. Thus if we are to criminalize this behavior, the reasons should be very substantial. We recognize that various reasons have been offered in the recent past to be anxious about the repeal of bigamy laws. The first is that many polygamous practices are thought to entail the coercion of underage brides.[1] We view this as a very substantial consideration especially because such girls often have had little recourse to reach beyond the communities in which they were raised.[2]  To be sure, the problems that arise in prosecuting persons guilty of misconduct – the unwillingness or inability of family members to testify against the perpetrator, the participation or enabling of the family members in the abuse – arise in monogamous situations too. But the problems are especially stark here, where an entire community may be supportive of the polygamist and not his underage wives. There is another important consideration related to the coercion of underage women.  Some practitioners of polygamy seek to evade criminal sanctions by simply not having the parties enter into a formal marriage relationship.  These minors, forced into a sexual relationship against their will yet not formally married, clearly need protection too. Yet, bigamy laws do not – and cannot – target this wrong. Indeed, they sometimes render the coerced parties as criminals.

            The fact that we must vigilantly guard against harm to minors does not mean that we must necessarily prohibit the decision of three or more consenting adults to enter into a polygamous relationship. Using broadly-written polygamy bans to fight coercion or exploitation of minors is over-inclusive and facially discriminatory because it punishes those adults with polyamorous desires or dispositions willing to abide by norms requiring both consent and maturity.[3]  There are ways that we can protect immature or unconsenting minors without infringing upon the associational rights of adults and minors.   

            First, as we suggested in connection with the discussion about incest, we would urge the adoption of laws prohibiting sexual (and marital) relationships between individuals in relationships of asymmetrical dependency. A child groom could be deemed dependent upon his adult “wife” for care, so under our guidelines that conduct would be prohibited (though the “poly” aspect of this prohibition is essentially irrelevant). We should also be vigilant about allowing parental authorization of marriages below an age of maturity and consent because that could facilitate abuse within communities committed to flouting those normative benchmarks. Yet, that concern for coercion is relevant in the context of both monogamous marriages and polygamous ones. In sum, although we believe we need laws that prohibit (or, per Prof. Markel, make substantially difficult,) the practice of polygamy that involves minors, we do not believe these laws need to unnecessarily infringe upon the rights of mature adults to structure their family lives in the way they feel appropriate.

                        A second reason to be worried about polygamy is that, on some views, it serves to facilitate the subordination of women.[4] Although bigamy statutes are facially neutral to women, and thus prohibit both polygyny and polyandry,[5] we acknowledge the sociological and anthropological evidence showing that polyandry is much rarer.[6]  Nonetheless, the research on this topic indicates that claims of thoroughgoing subordination of women go too far in light of the diverse reasons that polygamy erupts and the diverse forms polygamy takes under different conditions.[7] Moreover, it’s a mistake to resist polygamy (or more specifically, polygyny) as oppressive to women without noting that the same norms that exist within some polygamous communities also exist within some monogamous communities.[8] The empirical evidence also indicates that abuse is no more likely in polygynous communities than monogamous ones.[9]

            That means we have to sift carefully among the potential causes of harms. As Professor Shayna Sigman trenchantly writes: “The belief that polygyny causes gender discrimination or a low status of women in a given society is a classic example of the fallacy of post hoc ergo propter hoc. That polygyny can be found in societies that treat women poorly does not mean that the practice itself causes the gender inequality. Often, the true culprit of oppression merely lies in limitations on property rights for women, a practice that can be facilitated through polygamous life, but need not be. Indeed, where polygyny can help women economically by linking them with men who can provide more resources, it is the societies with less gender discrimination that are found to have this arrangement.”[10] Moreover, there is the quite powerful point that taking away a woman’s right to participate in a polygamous arrangement (whether with men or women or both) is itself a way of subordinating women. Again, as Professor Sigman observes: “prohibiting polygamy infantilizes women, declaring them incapable of providing consent and foreclosing true choice by criminalizing one of their options for family living.”[11]

            Another reason some might think criminalizing polygamy is appropriate is based on the economics of social welfare. If a person has eight spouses (and their offspring) for whom she or he must provide care and resources for, there is greater concern that these people might become charges of the welfare state.  The problem with this argument is that the economics of polygamy are quite complicated in individual cases and thus might not justify any encroachments on the rights people have to intimate association.  First, the state could take a more narrowly tailored measure to ensure financial viability: means-testing of those who want to add extra spouses.  Indeed, one could insist that adding more spouses is subject to higher taxes or proof of assets -- both of which are non-criminal rules that can achieve the same end of reducing numbers on the dole. Obviously, these rules should be crafted in gender-neutral terms.[12] 

            Second, in any given polygamous cluster, there might be economies of scale that attach to family units that allow for optimization of human capital. One woman who’s a polygamy activist in

Utah

paints her participation in a polygamous relationship in exactly such a manner.[13] Her husband has eight other wives and children with a number of them. One of the wives is employed by the others to tend to the collective children for several years at a time while the other wives are free to pursue careers of their choosing for longer periods of time. Other research shows that women are materially better off in societies where polygamy is allowed or encouraged.[14]  To be sure, it’s not our goal to improve the lot of women at the needless expense of any other group; but we advert to such studies simply to show that who benefits from polygamous arrangements is a more complicated matter than often assumed.  Polygamous arrangements aren’t to everyone’s taste, but in a world where women empirically continue to shoulder the brunt of child-rearing at the cost of their careers, flexibility in marital arrangements might be a way to minimize the social and personal costs of abiding by these extant social norms. 

            Finally, some propose banning polygamy because of the general harms it ostensibly imposes on the state. Professor Strassberg argues, with respect to some polygny practices in some communities,[15] that children from polygamous unions impose an unusual burden on the state in part because they are often concealed; such practices conduce to create theocratic communities that fail to abide by or support the government’s rules; that these practices create a secrecy that leads to the denial of individual civil rights; and, last, that these polygynous communities fail to pay sufficient taxes.[16]

            These arguments, while well-motivated, are largely misplaced. Concealment-based harms are only a challenge in the context of a state that criminalizes polygamy. There’s no legal need to conceal polygamous relations when polygamy is decriminalized. If we were worried that people were denied their civil rights, then that would be a separate reason to intervene in these communities.  If we’re worried about other legitimate harms resulting from the theocratic tendencies of certain polygynous communities, we have separate laws available to punish violations of any given law. It’s not as if polygamous communities are the only communities in which fundamentalist views pose a threat to the vitality and security of a liberal state. Using polygamy bans to remedy these harms on these grounds is essentially irrational as a government policy.[17]

            Assuming multiple covenants of care are objectively choice-worthy or are at least morally defensible on grounds of respecting the autonomous and honest choices of mature adults, then it seems that the state should be leaving the business of prohibiting polygamy and letting private ordering determine who marries whom. This would entail, of course, that same-sex polys should be able to group together as well without fear of prosecution. In practical terms, we would start with the presumption that bigamy should be decriminalized and that partners who wanted to secure exclusivity of marital relations could contract around such a rule through a private contract with liquidated damages. This would place the burden of talking about the preference for imposing the family ties burden on the person who wanted the family ties burden imposed. In light of our general leeriness about family ties burdens, this burden-shifting makes sense in light of the contract law theory of default rules.[18]

            Several advantages from this regime obtain. First, it encourages couples to discuss in advance of their marriage whether both parties have a desire to keep it monogamous. Second, it allows couples the flexibility to work these issues out without fear of the criminal law sanction. In other words, couples could create agreements in which polygamy is prohibited, but without the involvement of criminal law penalties. Third, it allows those who want the benefits that accrue from having a penalty operate to opt-in to a regime of regulation by contract. To be sure, a statute like this one still forces individuals to have conversations that might be deemed uncomfortable, but it seems that such a statute would prove to be a powerful information-forcing device prior to marriage. Fourth, because liquidated damages provisions are only enforceable to the degree that they are a reasonable estimation of the damages to an individual, they can be set at a level sufficient to communicate condemnation of the breach of trust, while still ensuring that the breacher can remain a productive member of society and care-giver to any dependents.

            It goes without saying that the fact that we are against traditional bans on polygamy does not entail that we personally encourage “poly” relationships. Emphatically, our view is limited to the scope of the criminal law. Our argument does not require that the state forbear from promoting certain kinds of relationships through the civil system – and if the state wanted to cater to those views which believe children are better raised through monogamous relationships then it could so through the use of civil subsidies and taxes, rather than criminal ones. We don’t necessarily agree that the state should use the civil justice system in this way, but at the very least, the civil justice system’s carrots and sticks don’t trigger the most fundamental liberty interests of citizens.

E.         Adultery

            Almost half the states in the

US

still retain adultery laws, though as we mentioned in Part I, they are sparingly used to prosecute individuals outside the military context. Some might view this state of desuetude as a sign of progress that we are no longer interested in pursuing “mere” morals legislation. However, we suspect that we could find strong support in some areas to retain these prohibitions, even if they are largely symbolic. For example, some may view the harm to children, or spouses who don’t consent to their partner’s non-exclusivity, as profound and worthy of criminal sanction. Some may view these laws as helping to further the state’s interest in keeping the institution of marriage strong and stable.

            Yet others, like us, regret that adultery laws work largely for the benefit of partners to heterosexual marriages and not to gay unions.             Our sense is that some of the concerns raised by adultery laws can be better avoided through more careful drafting of the criminal law. In keeping with our framework from Part II, we think these laws should be redrafted to avoid family ties burdens that are not of a voluntary nature. We can see the viewpoint that at least in certain contexts, adultery statutes help punish and deter injury to persons who didn’t consent to extramarital sex. But what many adultery laws don’t permit is a life in which both parties consent to one or both parties living in marriage but outside the bonds of monogamy.[19] Thus, we think that if adultery statutes are to be retained, they should be redrafted in such a way that they reduce injuries to persons’ well-being in a more fine-grained manner.

            To begin with, we view adultery laws that criminalize the extramarital sex of married persons as facial family ties burdens; that’s because, in the absence of such laws, the proscribed activity would otherwise be lawful. Given that adultery laws are drafted in gender-neutral terms across the country, we don’t believe they raise issues of patriarchy or gender bias against women.[20] Nonetheless, because same-sex marriage is not permitted in almost all American jurisdictions, adultery laws protect the interests of (potentially) betrayed heterosexual partners while not being similarly available to those in same-sex partnerships. For us, that is a basis for rethinking adultery laws.

            Assuming that adultery statutes could be made indifferent to sexual orientation, would there be any reason to retain them in some fashion? We think the strategy we endorsed in the polygamy context is instructive. We would begin with a statute creating a default rule that decriminalizes adultery because of the way adultery intrudes on the choices of autonomous and consenting individuals. But we would encourage prospective partners to contract around that default rule by agreements that called for liquidated damages.[21] As with polygamy, several advantages from this regime obtain.

            First, it encourages couples to discuss in advance of their marriage whether both parties have a desire to keep it monogamous. Second, it allows couples the flexibility to work these issues out without fear of the criminal law sanction. Couples could create agreements in which adultery is prohibited, but without the involvement of criminal law penalties. Third, it allows those who want the benefits that accrue from having the penalty operate to opt-in to a regime of regulation by contract. To be sure, a statute like this one still forces individuals to have conversations that might be deemed uncomfortable, but it seems that such a statute would prove to be a powerful information-forcing device prior to marriage. Fourth, because liquidated damages provisions are only enforceable to the degree that they are a reasonable estimation of the damages to an individual, they can be set at a level sufficient to communicate condemnation of the breach of trust, while still ensuring that the breacher can remain a productive member of society and care-giver to any dependents.

            Let’s emphasize that the burden for contracting around the default rule of permitting adultery falls upon the individual who has information regarding his or her preference for monogamous relations. Thus the person wanting the family ties burden imposed has to raise the issue and force a conversation about monogamy. We think that, in light of the difficulties raised by many family burdens, this is where the burden should lie. This is also consistent with our sense that if we are to have other family burdens like vicarious or omissions liability, they should be available for a wide range of persons who either have signaled their care-giving commitments through parenthood or partnership or those not in such relationships but nonetheless want to create a covenant of care-giving.

            Admittedly, we toyed with an idea -- inspired by an article by Professor Elizabeth Emens -- that parties should be able to opt into a regime of voluntary criminal law regulation, such that breach of a contract for monogamy could lead to criminal prosecutions for bigamy or adultery.[22]  But upon further consideration, we recognized the unfairness of using public resources to investigate, prosecute, and punish conduct that amounted to a breach of private promises to each other. The notion that average people would have to pay more taxes or suffer the effects of diverting scarce prosecutorial resources to prosecute the failure of a private party to live up to its contractual expectations seemed ultimately unsupportable. By contrast, even in the absence of “contractual criminal law regulation” of adultery or polygamy, parties of any sexual preference can contract for monogamous commitments on pain of liquidated damages, and that would be a way private ordering could supplant the clunky machinery of the state’s prosecutorial apparatus.[23]

            It’s hard to say whether decriminalization of adultery works to create, in the language of contract theory, a penalty default rule or a market-mimicking default rule.[24] Such a statute serves as a penalty default rule if we assume most people want their marriages to look more like “covenant marriages.”[25] If couples want exclusivity, the law will force them to take active steps to communicate and discuss that preference. On the other hand, it may be possible to infer (based on patterns of non-prosecution for adultery) that most people don’t want to have the criminal law enforce these matters even if they view adultery in low regard. In that respect, the statute serves as a market-mimicking default rule.

            One flag of caution we want to raise is that if a jurisdiction adopted a default rule, it has to be aware of how default rules can be “sticky,”[26] and how such stickiness might affect the prospect of law’s ability to affect behavior. For example, if we create a rule that defaults to allowing extramarital sex without any legal stigma, it might actually encourage that behavior even if the goal of the default rule is simply to encourage partners to have conversations and agreements about the scope of their relationship to each other. Of course, this result might occur if we simply decriminalized adultery without giving the opportunity for partners to secure promises of exclusivity through marital agreements.

            In sum, because we believe the protections of the criminal law should not be arbitrarily denied to couples of different stripes, we would support the decriminalization of adultery laws altogether if such laws could not be redrafted to include those in voluntary care-giving relationships.  However, if same-sex marriages were recognized, as we would prefer, we think that parties should be able to contract around adultery laws, and in truth, even today, they might be able to do so through private ordering.[27] As we explained above, we would prefer to set the default rule in a way that incentivized the person wanting the family taxes imposed to ensure the agreement of the other spouse. 

            Thus far, we haven’t said much about what criminal law consequences, if any, should be visited upon a person who has sexual relations with a married person.[28] (Recall that in some jurisdictions, adultery statutes encompass the “outside” person who intrudes upon the marital relationship.) We think the reach of these statutes goes too far and that such adultery statutes should be modified to end criminal liability for those persons. But our liberty-respecting basis for arriving at that conclusion admittedly has nothing to do with our approach to family ties burdens. When the adultery statutes extend criminal liability to those third persons, there is no family ties burden imposed on that person on the basis of that person’s familial status or familial connection to the crime.  Properly understood, those provisions of adultery laws are not family ties burdens as we define them.

F.         Nonpayment of Child Support

There is no disputing the reality that nonpayment of child of support is a serious problem in our society.[29]  It harms single parents in one-income households who are left to care for their children alone  – and it is usually mothers, of course, who bear the brunt of single parenthood and its unique challenges.[30]  And it obviously harms children, who rely on support payments for subsistence.  It is, accordingly, unsurprising that our criminal justice system takes especial interest in child support debts.  Although all unpaid debts risk harming classes of creditors, when we know the classes of creditors are especially vulnerable (children and single parents) with very little recourse to self-help options, we can see why it would be attractive to policy-makers to use the criminal justice system to make sure these debts gets paid.

Of course, as we have already highlighted above, using the criminal justice system in this manner is not necessarily good – or effective – policy.  It risks putting “deadbeat” parents in prison, where they certainly won’t be able to earn money to help support their children; it prevents parents from having meaningful relationships with their children – even if their only failure as parents was being too poor to pay support; it focuses too narrowly on the economic aspects of parenthood, devaluing other important contributions to parenthood; and it further reinforces outdated and pernicious views about fathers as discharging their parental obligations through money rather than direct care-giving.  Although these criticisms of imprisoning “deadbeat” parents do not obviously close debate on the difficult public policy questions about how to incentivize good parenting, we think our normative framework provides yet another perspective on the issue: that punishing “deadbeat” parents is a clear family ties burden that stands in need of justification as such.

Criminally punishing parents for debts they have to their children and former spouses clearly triggers the concern that most family ties burdens do: it punishes the same conduct – failure to pay a debt – differentially, depending on the familial status of the offender.  This is the paradigmatic concern that we have with family ties burdens, for it raises the specter of discrimination. 

But the case of nonpayment of child support may here reveal a limitation of our approach because one could plausibly retort that it is too facile to say that the nonpayment of a contractual debt to a phone company, for example, is the same conduct as the nonpayment of child support.  Indeed, one could argue that our society has differential views about the blameworthiness of these two forms of nonpayment precisely because we see them as different sorts of conduct, not as the same conduct treated differentially on the basis of status. Although we cannot deny that this re-description of the burden has some rhetorical force, we still think our organizing principle (of looking at examples in the criminal justice system where the same conduct is treated differentially on the basis of status) helps expose something deep, systemic, and pervasive about how the criminal justice system in the United States interacts with a normative conception of the family.

Thus, even were we to concede that the concerns about equal treatment of offenders and discrimination against familial status is mitigated to some degree by a general societal belief in the more serious blameworthiness of nonpayment of debts in the child support context, we would still maintain that the promotion of a particular normative conception of the family through criminally punishing mostly men for failure to pay child support raises serious concerns from the perspective of entrenching gender biases in our society at large.

We think it is undeniable that punishing mostly men for failing to pay child support contributes to a gender stereotype that assumes that men are supposed to be breadwinners and women are supposed to be care-givers.  Although the statutes that punish “deadbeat dads” criminally are drafted in gender-neutral ways, fathers are most often the ones imprisoned under these laws.[31]  Moreover, women bear the cost of having our criminal justice system reinforce the idea that men are primarily breadwinners – and that men can discharge their parenting responsibilities through paychecks.  This system contributes to and reinforces gender hierarchy in our society – and it therefore runs afoul of our general concerns about family ties burdens.

We cannot deny that there are countervailing values that justify these laws in many people’s minds. As we suggested, these debts, when unpaid, can largely harm vulnerable children and care-givers.  So what does our particular framework offer to the public policy community on the issue of nonpayment of child support?  Must the legal system get out of the business of these prosecutions?

First, we think it is worth noting that a number of other non-criminal enforcement mechanisms already exist to induce individuals to comply with their mandated child support payments.  For example, wages can be garnished, tax refunds can be intercepted, and licenses and passports can be suspended.[32]  Further, these remedies can often be pursued outside the criminal courts, for example through state administrative agencies or through mediation.  These civil proceedings can potentially promote the important ends that animate the current laws with more sophisticated, more sensitive, and less troublesome means.  Primarily, these other enforcement mechanisms might be sufficient to keep “deadbeat” parents in their children’s lives while at the same time ensuring that children receive the funding to which they are entitled.

We cannot avoid the core question, however:  when these mechanisms fail, should enforcement through the criminal justice system, and in particular the use of incarceration, be an option of last resort?   There is at least one study, albeit somewhat dated, that suggests that criminal sanctions can be effective.  Professor David Chambers “found a close parallel between payments and jailing:  the counties that jailed more did in fact collect more.”[33]   But other mechanisms have been shown to be even more effective than incarceration, with suspension of driver’s licenses being the most effective stick.[34] 

Thus, in light of the fact that other mechanisms can be even more effective than incarceration, the fact that the policy may be enforced in a way that doesn’t as clearly contribute to reinforcing images of fatherhood as a strictly financial obligation, and the fact that incarceration affirmatively impedes care-giving rather than fostering it, we think incarceration for failure to pay child support ultimately cannot be justified.  That is not to say the criminal justice system cannot play any role in regulating parental behavior; fines and probation may well be valuable in inducing a potential defendant to pay.  But incarceration should not be an available sentencing option.

Second, although we applaud the drafting of these laws in gender-neutral language, we think more work can be done to take focus off the family in particular, and trying not to target familial status for special treatment.[35]  Because our general approach is to deflect attention away from state-sanctioned families and promote the reorientation of “family ties burdens” to target relationships of voluntary care-giving, we suggest broadening the ambit of whatever approach the law takes to the punishment or treatment of nonpayment of debts of child support to include all nonpayment of debts of support to those in asymmetrical relationships of voluntary care-giving.  In sum, we would favor a solution to get the law to stop assuming that traditional families are the only ones in relationships of voluntary care-giving that subject individuals to special duties whose violations can trigger criminal law enforcement.   

Conclusion

            We hope to have accomplished three things here.  Most concretely, we have demonstrated that there are a series of burdens that defendants face in the criminal justice system on account of their family status, when that status is recognized as part of a state-sanctioned family unit.  Although our previous work on the range of family ties benefits might suggest that family status could only help a defendant, our exploration here reveals that that picture is incomplete. There are many ways that the criminal justice system goes out of its way to punish family status.  It hasn’t been noticed before and we hope to get scholars and policymakers to take interest in these findings.

Second, we made an effort to organize a normative framework for thinking through whether special penalties should attach to family status.  What we discovered is that these sorts of penalties are most palatable when they are efforts to reinforce relationships of voluntary care-giving. Given that underlying structure to the most sound of the family ties burdens, we think focusing the criminal law on that general goal can reorient family ties burdens in normatively attractive ways. 

Finally, we tried to spell out how our normative framework might contribute to thinking through each of the family ties burdens we were able to identify here.  Ultimately, it was beyond the possible scope of this Article to analyze each family ties burden exhaustively – for they are each embedded within a policy space of their own and each burden functions differently to control different kinds of conduct.  Nevertheless, our hope has been to contribute to the debates surrounding each particular burden by revealing each burden to be part of a systematic effort to punish family status in several ways – and by revealing how we think they can be reoriented and rethought in a more normatively attractive light.

---

[1] This was a particular problem with the recently convicted Warren Jeffs, who married off barely post-pubescent girls in his community and at the same time effectively banished teenage boys from the community to “make more girls available for marriage to the elders.” Julian Borger, Hellfire and Sexual Coercion: The Dark Side of American Polygamist Sects, Guardian, June 30, 2005, at 15.

[2] We note also that teenage boys can suffer harm from polygamous practices as well; for example, by being cast out of polygamous communities so as not to compete with older men for the available women.

[3] It seems that much of the historical American animus against polygamy is rooted in religious discrimination against the Mormon faith tradition and its adherents. Today, it’s hard to say that anti-Mormon bias alone is what keeps polygamy bans on the books; as some commentators have noted, it’s possible that anti-Islamic bias works to build coalitions against polygamy.

[4] Sigman helpfully explains why polygamy may be more marginally abusive to women but also why these claims are suspect. See Sigman, supra note 88, at 172-73 .  She notes “(1) polygamy invites secrecy, undermining women's ability to get help if needed; (2) the structure of  polygamy suggests that the husband will not have sufficient time to devote to each wife or their children; (3) the treatment by other wives may be abusive; and (4) the types of people who voluntarily choose polygamy may be attracted to the uneven power dynamic. However, there is no evidence that polygamy per se creates abuse or neglect. Having sister wives can be a support network. The status of senior wives versus junior wives and the relationships among these women vary between cultures. In fact, by banding together, women sometimes wield more power to change their husband's problematic behavior. Yet sometimes co-wives are perpetrators [of the abuse against women].”

Id.

[5]

Cheshire

Calhoun, Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy, 42 San Diego L. Rev. 1023, 1039 (2005) (“What these historical details remind us is that gender inequality is a contingent, not a conceptual, feature of polygamy.”).

[6] Sigman, supra note 88, at 161-163 (summarizing research explaining the rareness of polyandry).

[7] See Sigman, supra note 88 at 163-64( “Rather than the gender biased monolith some have made it out to be, polygyny is a multi-faceted choice of family structure, rooted in the economic, sociological, cultural, and biological particulars of a given society.”); see also Remi Clignet & Joyce A. Sween, For a Revisionist Theory of Human Polygyny, 6 Signs 445 (1981) (demonstrating diversity of polygynous marriages).

[8] E.g., Strassberg, supra note 88, at 1589 ( “monogamous marriages in nineteenth-century

America

were based on the same patriarchal ideas about women's nature and gender roles as polygamous Mormon marriages”).

[9] See Sigman, supra note 88 at 173 nn. 595-96 (citing studies).

[10] See id. at 164.

[11] See id. at 172.

[12] The Koran actually instructs Muslim men not to take on more wives than they can afford to keep in equal comfort. See id. at 158 n.485 (citing The Qur'an: A New Translation 4:34 (M.A.S. Abdel Haleem trans., Oxford University Press, 2004).

[13] See Emens, supra note 84, 315-17

[14] See Sigman, supra note 88, at 152 n.430 (citing to relevant study of the economics of polygamy); see also Robert Wright, The Moral Animal: The New Science of Evolutionary Psychology 96-99 (1994) (offering theoretical support for polygamy under certain material conditions).

[15] It’s important to note that the official Mormon institutions no longer support or encourage polygamy but there are communities that are Mormon-inspired and continue these practices; it is largely on these off-shoots that Professor Strassberg focuses.

[16] Maura Strassberg, The Crime of Polygamy, 12 Temp. Pol. & Civ. Rts. L. Rev. 353, 405-12 (2003).

[17] Professor Strassberg has emphasized the harm to liberal democracies on different grounds, which we also find unpersuasive. Adopting a Hegelian perspective, Strassberg has indicated that “monogamous marriage is a fundamental aspect of the liberal state, because monogamy fosters the development of autonomous individuals who fall in love, based on unique characteristics. These fully-developed autonomous individuals are then able to interact within private spheres to fulfill their emotional and intimate needs, as well as in public spheres that recognize rights and liberty. When the state recognizes marriage, the individuals are able to connect the existence of the state to individual freedoms, and the transcendence of individuality gives rise to an ordered state.”  The social science literature does not seem to support this view.  See Sigman, supra note 88, at 175-76. Moreover, from a theoretical perspective, liberal regimes retain their credibility by reducing the instances in which they use the criminal law to interfere with the autonomous and consenting choices of the individuals involved. Taking a firm stand against polygamy requires liberal regimes to abandon their commitment to respect for most forms of private ordering in the absence of obvious and substantial negative externalities.

[18] It’s hard to say whether a rule that defaults to decriminalization of bigamy would be a penalty default rule or a market-mimicking rule. Although the overwhelming majority of Americans oppose polygamy, the pattern of non-prosecution for most instances of polygamy over the years suggests (weakly) that there’s not much support for enforcing polygamy bans. See Sigman,supra note 88, at 140-41 (noting lack of prosecutions over much of the last 50 years and general apathy among Utah law enforcement to prosecute polygamists); see also Dirk Johnson, Polygamists Emerge From Secrecy, Seeking Not Just Peace but Respect, N.Y. Times, Apr. 9, 1991, at A22 (“[I]n recent years, as state law enforcement officials have adopted an unwritten policy of leaving them alone, polygamists have gone public.”).

[19] One might fairly ask why get married if one wants to preserve options for nonexclusivity. We recognize that some people’s assessments of their own preferences and values might evolve or the circumstances might become sympathetic.  For instance, one can imagine a situation where a spouse becomes ill and unable or unwilling to engage in sexual relations but that spouse is willing to let the other spouse engage in extramarital sex; indeed, the healthy spouse might still love and cherish her ill spouse, which is a relationship of which the state should be respectful. The problem is that under typical adultery statutes such extramarital sex would be forbidden.

[20] Some have argued that the

United States

military actually has an implicitly gendered approach to prosecuting adultery within courts-martial. See

Hopkins

, supra note 105.  Because none of us has sufficient understanding of military legal culture, we really can’t say what the military should do in its adultery regulations.  Our general argument here would tend to suggest that the government should not criminalize consensual adult sexual behavior.  But because our framework enables the government to proffer compelling interests to overcome our presumption against family ties, we can’t be sure how to analyze military policy in this regard.  Our instinct is to be suspicious; but we’d defer to military law experts on this one.

[21] See generally Mary Anne Case, Marriage Licenses, 89 Minn. L. Rev. 1758, 1779 & n. 87 (suggesting that perhaps marriage one day could “mov[e] closer to a system of default rules in which couples could structure their own lives,” for example by choosing to have “reliance or expectation damages” available for the breach of certain promises).

[22] We note that Professor Emens in the final analysis preferred simple decriminalization of adultery statutes, in part because of her concerns that they were unconstitutional after

Lawrence

. Our sense is that such a conclusion is too hasty, especially if adultery statutes are drafted to be more respectful of the autonomous choices of individuals opting into a regime of regulation to prevent the kinds of harms that might materialize both to betrayed spouses and to any children of such a marriage. Nonetheless, we too prescind from “contractual criminal law regulation” but for reasons having to do with fairness and externalities.

[23] One way to reduce the externality, however, would be to have the social cost of the sanction placed on the contracting parties. Thus, if the sanction was capped as a misdemeanor punishable only by a sentence of community service with no collateral consequences, it would dramatically reduce the concern of a socially costly punishment. The imposition of that penalty could be permitted by statute to vest in those civil or family courts adjudicating the breach of the contract.

[24] Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 90-91 (1989).

[25] Covenant marriages require higher entry and exit costs to marriage. Such measures might include mandatory counseling before marriage and before any divorce.  A few states have embraced covenant marriage statutes: Ariz. Rev. Stat. Ann. § 25-901 to -906 (West 2003); Ark. Code Ann. § 9-11-801 to -810 (Michie 2003); La. Rev. Stat. Ann. § § 9:272-9:274, 9:307 (West 2000). See generally Steven L. Nock, Laura Sanchez, Julia C. Wilson, & James D. Wright, Covenant Marriage Turns Five Years Old, 10 Mich. J. Gender & L. 169, 170-72 (2003).

[26] On “sticky” default rules, see generally Ronald J. Mann, Contracts -- Only with Consent, 152 U. Pa. L. Rev. 1873 (2004); Brett H. McDonnell, Sticky Defaults and Altering Rules in Corporate Law, 60 SMU L. Rev. 383 (2007).

[27] The family law implications of these proposals for property distribution or other issues are matters beyond the scope of our criminal law focus here. However, our liberty-respecting framework for polygamy raises important and interesting questions about the reach of family ties benefits, such as whether a person with several spouses should be entitled to spousal privileges with all of them, etc. This is a topic we will take up in our book, where we can better juxtapose these issues for the reader.

[28] The “outside” person (X) is (knowingly or unknowingly) intruding upon the marital space between Y and Z. Our analysis of what penalty should attach to X is contingent upon X’s marital status. If X is unmarried, no penalty should attach, in our view, assuming X is a competent and mature individual. If X is married, his treatment at the hands of the criminal law should be contingent upon what kind of exclusivity his marital contract calls for.

[29] See sources cited supra notes 113-119.

[30] See id.

[31] A woman has been jailed for failing to pay child support in at least one case.  See http://query.nytimes.com/gst/fullpage.html?res=990CE7D9113EF935A15754C0A963958260

[32] See, e.g., Weisberg & Appleton, supra note __, at 700-01 (describing various enforcement mechanisms).

[33] David Chambers, Making Fathers Pay: The Enforcement of Child Support 84 (1979).  Chambers studied enforcement efforts in

Michigan

between 1972 and 1975.  See also Drew Swank, The National Child Non-Support Epidemic, 2003 Mich. St. DCL L. Rev. 357, 375-378 (2003) (author citing his own studies for proposition that jailing was effective).

[34] See Swank, supra note 204, at 378.

[35] To the extent that nonpayment of child support can be thought of as a form of omissions liability, we have already acknowledged above that omissions liability can be justified under several circumstances; they could also apply in this context as well.  As in that context, we try to take focus off the family in particular.

Punishing Family Status: Application of the Family Ties Burden Framework

In today's installment of Punishing Family Status, we discuss, among other things, why incest laws should be abolished...

In this Part, we undertake some analysis of the various family ties burdens we identified here and here.   Recall that our framework asks the following questions.  First, assuming the burden is imposed only on individuals based on their family status or familial connection to the crime,[1] we must ask to what extent does the family ties burden in question implicate the normative costs of gender bias or unfair inequality?[2] Second, assuming the burden implicates one or more of these concerns, to what extent does the family ties burden vindicate a compelling state interest? In other words, given the disruption the burden promises to wreak on other values, what are the countervailing benefits promised by its imposition? Finally, we must ask whether there are other less troubling means — means that can be crafted in terms that are neutral to family status — available to protect the interest underlying the burden. In situations where the case in favor of the penalty on the family appears to make sense, we argue that the burden should not be imposed on the basis of traditional familial status, but rather on the basis of care-giving relationships of autonomous choice. 

            In what follows, we do not exhaustively analyze each family ties burden – even from within our own framework.  As we acknowledged at the very beginning, each of the burdens we’ve identified requires its own long-form analysis, taking account of its particularized context.  Accordingly, all we endeavor to do in this Part is furnish a feel for how our framework contributes to a more comprehensive accounting in thinking through each family ties burden.  We think our framework recommends caution about the bulk of the family ties burdens we’ve identified and urges creativity in redesigning these burdens to make them less discriminatory.

III.            Application of the Framework to Family Ties Burdens

            

A.        Omissions Liability

The question of omissions liability is a difficult one, and the analysis seems to vary according to the kind of status relationship at issue.  Let’s begin with the most common scenario where we see liability imposed:  prosecutions of parents who fail to protect their children from harm. As an initial matter, we need to acknowledge that imposing liability on a parent for failing to protect a child from harm certainly has the potential to perpetuate inequality and discrimination. It undoubtedly is facially biased against homosexual couples, many of whom cannot have legal children.  More, we know enough about prosecutorial practices to be concerned that omissions statutes are used in a way that may perpetuate stereotypes about gender.[3] Thus, in particular situations, it might be a male father who is battered, and our approach to omissions liability does not hinge on the precise identity of the defendant qua mother. But it is important to acknowledge that in some forty to sixty percent of cases where children are being battered, a parent (usually the mother) may be the victim of battering as well.[4]  The victims of violence may have few available options to remove their children from an abusive situation.  They may correctly perceive that attempts to leave will escalate the violence.[5]  They may have no economic options in terms of being able to find housing or a job that will provide sufficient income to support a family.[6]

Thus, it bears mention that there are practical options available to help mitigate the potential disparate impact of omissions liability.  For example, as a policy matter we should partner any attempts to hold parents accountable for their failure to protect with efforts to make it more viable for battered spouses to leave abusive partners – more funding for shelters, for example, and provision of job training and child care resources.[7] 

There could also be limitations to when we seek to impose liability.  First, in contexts where omissions liability is established in cases involving child abuse, we should limit liability to those circumstances where a parent had prior knowledge of past abuse and had the practical opportunity to seek help, such as access to a telephone to contact law enforcement authorities. Second, in many instances, parents who fail to protect in a case involving a fatality should not face the same homicide charge as the actual killer but instead should be charged under a separate statutory scheme, carrying lesser penalties, criminalizing a failure to protect.[8] A separate statutory scheme would better reflect the idea that there is a meaningful moral distinction between actually inflicting the fatal blows and, for example, making the mistake of leaving a child alone with an individual who has been abusive in the past.[9] 

But ultimately, imposing liability on parents for failing to protect their children vindicates a compelling state interest – the need to protect children from harm. It is in this scenario that our concerns about fostering the care-giving capacity of individuals reach their zenith.  Young children are simply helpless to protect themselves from harm; that responsibility must fall on the shoulders of those adults in the position to be a child’s only lifeline.[10]  Parents who have voluntarily chosen to retain the benefits conferred by the parent-child relationship should endure some burdens in return, and surely ensuring the safety of a child society has entrusted to the parent’s care represents the most fundamental of reasonable burdens. When a person opts to have children, the parent is, as we suggested earlier, signaling to the society and state that the parent will be a first responder.

In this respect, imposing a duty to rescue here is analogous to the imposition of liability on those people who have “waved away” others. Our goal, of course, is not to tie an albatross around the neck of every parent.  Omissions liability doesn’t create a responsibility to rescue against unreasonable risks.  It operates only to ensure that when a parent is in a position of protecting the child from imminent harm, the parent takes those measures. In practical terms, it’s a recognition that the parent is usually (but not always) in the best position to bear this burden – no other adult ordinarily has the same access to, or opportunity to observe, a child in situations that prove dangerous.

It is necessary to recognize an additional important caveat to the above discussion: not all children live with their biological parents.   A child could reside with another relative, such as a grandparent, or a family friend, or a foster family, to name just a few possible permutations.[11]  Therefore, limiting omissions liability to biological parents and their children has the potential to be under-inclusive, in that it does not recognize non-traditional relationships of care-giving.  An opt-in, or opt-out, system seems unsatisfactory when it comes to children, however, because children simply cannot be expected to utilize a registry and more fundamentally, children are without resources to avoid their own vulnerability or sufficiently protect themselves from harm through other means.  Therefore, we propose a test that focuses on something other than biological parenthood: does the individual in question stand in the position of a primary caregiver to the relevant child?[12]  If the answer is yes, then that individual can face liability for failure to protect on an omissions theory absent any relevant and compelling excuse or justification. This would avoid the over-inclusiveness problem of relying on biology too. There might be situations where a biological parent has parental rights terminated, and in those situations, we think there should be no duty to rescue under the criminal law.

What about children who are no longer minors? Do their parents still owe them a duty of care, or should we go further and impose a reciprocal obligation, in that adult children should be charged with a duty to protect their parents?  Adult children seem in a fundamentally different position than minor children – they can both utilize a registry system and have more options available to remove themselves from a dangerous situation.[13]  In addition, the dynamics of the relationship may be very different with an adult child; it may seem justifiable for parents to wish to sever a relationship with a child who has committed a heinous crime, or even victimized his parents, for example, whereas we would not allow parents of a minor child to walk away from their obligations to that child because of the child’s misconduct.

While the urge to promote an ongoing ethos of reciprocal care between parents and children is a powerful one in some cultures, we must bear in mind a child’s relationship with his parents is not voluntary in the same sense as a parent’s relationship to his children; after all, no child asks to be born, let alone to these parents. Thus, it is no surprise to us that many jurisdictions are reluctant to impose such liability now, even when that position leads to seemingly unjust results.[14] Because of the non-reciprocal voluntariness problem, an opt-in registry makes sense in the context of adult children who wish to signal their compacts of care with their parents. And if they want, parents can opt to signal their ongoing commitment to their children by agreeing to face liability for failing to protect them as adults.

As to spouses, this analysis calls for refinement. Any potential prosecution of a spouse for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot, or who choose not to, enter a spousal relationship sanctioned by the state.[15]  For example, these laws currently do not clearly permit those who are family members of homosexual couples to take the same comfort in knowing that omissions liability is parceled out in a non-discriminatory fashion. One way to see this discrimination is through analogy: if omissions liability were restricted on the basis of race, such that whites had a duty to rescue their spouses but blacks did not, what message would that send? Clearly one that devalued the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state.  Why should a heterosexual man have an obligation to protect his spouse from harm when a gay man does not?[16]  Why should a close friend of many decades escape liability for failing to protect when a brand-new bride does not?  In both instances, imposing liability serves the same valuable functions: in concrete terms, it fosters safety, and in normative terms, it promotes an ethos of care. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly under-inclusive – it leaves out those who choose not to be married and, more problematic, those who cannot get married because of a plainly troubling and blatantly discriminatory moral choice made by the state. 

For the most part, we don’t have much problem with marriage being an over-inclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we would support decoupling omissions liability from marriage and instead ask both parties to a marriage to register as first responders for each other, the way we would ask any other person to signal his expression of commitment.[17] Thus, for example, individuals who voluntarily have chosen to live with a partner in a romantic relationship, regardless of whether that relationship is officially recognized by the state, would be able to signal their commitment of care.

What about relationships outside these two primary categories of spouses and parent-child, such as siblings or cousins or roommates? Any decision by the state to impose a legally enforceable relationship of care-giving seems most problematic here.  For those relatives outside the parent-child or romantic partner context, we simply cannot say these relationships have been entered into voluntarily – no one chooses their siblings or cousins (though maybe one does choose roommates after college…).  In the context of platonic roommates, imposing a duty of care would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of care-giving through the use of a registry.  This allows individuals to signal their commitment both to each other and to those around them.  It is, of course, possible that very few individuals will choose to register – why would they voluntarily assume the risk of a legal liability that they currently do not face?  But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability.

If, on the other hand, some individuals do choose to enter into a legally-recognized relationship of care-giving, the benefits that decision conveys in terms of promoting safety, and promoting an ethos of care and compassion, certainly seem worth the effort.  We can also imagine the state incentivizing such registrations through small tax breaks or norm entrepreneurs (think of faith groups) that mobilize “opt-in days” to foster solidarity among members of their communities or sub-communities. And because peoples’ relationships ebb and flow, we could imagine that the registry would permit people to withdraw from these covenants of care-giving if notice is given to the affected parties.[18]

Allowing more private-ordering in the context of criminal law regulation here (with sufficient attention to third-party harms) is consistent also with the suggestions we make next in the contexts of incest, bigamy, and adultery.

B.         Vicarious Liability

The first three forms of vicarious liability discussed in Part I.A – truancy laws, curfew laws, and contributing to the delinquency of a minor – seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as “impure” vicarious liability laws.[19] But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn’t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.

As might be expected, we remain skeptical of these sorts of laws because to the extent that they reinforce special duties that flow in light only of state-sanctioned family status, they are simple family ties burdens. If an element of a vicarious liability crime is a relationship of family status, it would offend basic principles of equal treatment, since those in relationships of autonomous care-giving that behave identically but do not have ties of family would not be considered culpable.  That result cannot stand, if the liberal state takes seriously the idea of approaching all its citizens with equal concern and respect.  Accordingly, to the extent that the states that embrace these regulations think they are necessary, we would urge those legislatures to draft their laws in ways that do not burden the family directly.  We can imagine several ways around this problem, whether it involves exacting liability on all voluntary care-givers – or more carefully circumscribing these crimes so that family status is not used as an element.

More controversial still are the strict liability offenses.  Should a parent or other caregiver be prosecuted on a strict liability theory, facing criminal sanction simply because the child under her or his care has committed a crime?  Put most starkly, does one’s status as a caretaker suffice to warrant perhaps the greatest family ties burden of all: sanction through the criminal justice system for the criminal conduct of another solely because of family status?

We think the answer must be no in the absence of a blameworthy state of mind and an actus

reus

by the caregiver in question.  As we have suggested in this Article, many family burdens imposed by the criminal justice system are in place because of the idea that they promote an ethos of care.  Yet, imposing criminal responsibility on a strict liability theory does not seem to promote more effective care-giving than a negligence standard would.

Let us illustrate with a concrete example.  Imagine a parent goes out on a date and leaves a twelve year-old alone in the house with unsecured firearms and an unlocked liquor cabinet, when the parent knows the child has attempted to play with the guns and drink liquor on prior occasions. If the twelve year old proceeds to get drunk and use the parent’s gun to shoot up the neighbor’s car, the parent has been reckless, or at a minimum, negligent by “failing to exercise reasonable control” over the child.  Imposing liability in this scenario will signal both to this particular caregiver, and other caregivers in the community, that caregivers must supervise their children more vigilantly.

But imagine instead that the child buys the gun in a school locker room with his money from an after-school job and shoots up the neighbor’s car on the way home from school, despite repeated admonitions by the parents to stay away from guns and people with guns. Under an ordinance like the one passed (and struck down) in

Ohio

, parents could face prosecution on a strict liability theory because their child had been charged with a crime.  But such a prosecution would have no impact in terms of promoting better care-giving; there is no care-giving the parent could have done that would have prevented the crime in question, other than refrain from parenting altogether. If we are to believe that these standards of conduct are emitting signals to would-be parents, the strict liability standards would simply encourage people to forbear from parenting or to take their chances in the enforcement and genetic lottery. This is not purely hypothetical either. To the extent we want to use criminal law to project social norms about correct values, the strict liability standard in some vicarious liability statutes will deter people from becoming foster parents, adoptive parents of teenagers, or on the margins, parents of their own biological children. That’s not the signal regarding the promotion of care-giving that society should emit.

Thus, as a general matter, we are dubious about the value of these statutes both as to their capacity to reduce crime through parenting vigilance or to signal commitment to parenting values. Equally important, we note that limiting vicarious liability to those in a state-sanctioned family unit seems underinclusive and discriminatory. If these statutes are to do the work of crime-reduction that its supporters promise then they should be structured in such a way that they apply to all those who have voluntarily assumed care-taking and custodial responsibilities for the minors in their households. In other words, if vicarious liability is embraced by legislatures because of its crime-reduction promise, then it should be applied whenever there is a relationship of asymmetrical dependency and voluntary care-giving, and not just a strictly construed version of biological parent to child. For at least this way, more of the deterrence will be achieved by extending its ambit to same-sex or non-married child-rearing partners, and the importance of the care-giving value will be communicated to those who have opted to raise children.

C.         Incest

            As we discussed in Part I, there are various kinds of incest rules: some regulate conduct regardless of the age of participants, some regulate conduct regardless of the consent of the participants, and some regulate conduct among intimates regardless of an actual blood relationship. Unsurprisingly, there is overlap across these categories depending on the jurisdiction. 

            As we develop below, we think that at least as to some of these relationships, the state should step in to proscribe the sexual conduct – and with regard to others, the state should step aside. In order to determine whether there’s a kind of inequality or arbitrary discrimination apparent in the incest context, we need to have some baseline principles that would help us assess the state’s intervention in a specific situation. We can think of two relatively uncontroversial principles. First, because of the high likelihood of implicit or explicit coercion, prohibiting sexual relations between those sharing an asymmetrical relationship of dependency should be permissible, regardless of whether the dependency relationship is established through consanguinity, through marriage, or through the assumption of caretaking responsibilities.[20] Second, consensual sexual relations between mature adult individuals not otherwise in a relationship of asymmetrical dependency should be permitted. How do these principles apply in the context of the categories of incestuous relationships to which we adverted in Part I?

            As to relationships between non-dependent adults, we think it is straightforward that a respect for autonomy and limited government permits consenting individuals to engage in the sexual relations they deem appropriate without fear of criminal sanction.[21] That’s not to say we necessarily endorse any of these relations; rather, we simply think the state should not be treading upon the intimate associational rights of mature individuals.  As they stand, the current laws chill consensual activities by adults that should be unencumbered by threats of arrest, prosecution, and punishment.[22] We recognize the concern that incestuous relationships have the potential to be abusive and nonconsensual,[23] and we think that these concerns are substantial and important. But in the context of adults, these problems can ordinarily be punished through the traditional crimes tracking lack of consent: i.e., the crimes regulating sexual assault.[24]

            We acknowledge that in some circumstances those available laws may be unsatisfactory. For example, it is quite possible that the coercion involved in an incestuous relationship would be psychological rather than physical, and many states still do not consider psychological coercion sufficient to satisfy the required elements of their rape or sexual assault statutes.[25] Thus, although our background laws forbidding sexual assault and rape may be sufficient bases for prosecuting and punishing offenders in cases involving physical coercion, it is important to recognize that the current status of rape law may leave some non-consensual incestuous relationships outside the reach of criminal law sanctions, and reform of current rape laws continues to be an important goal.  But in those truly consensual mature relationships that are the focus of this section, prohibiting adult step-siblings or any other adult couple from having relations is a form of mere squeamishness – at least from a liberal criminal justice perspective which is not seeking to impose a particular sexual morality.[26]

            Some might raise objections to decriminalizing consensual adult incest based on fears about genetic repercussions.  But at least with respect to those not related by consanguinity, there is no basis for genetic fears at all. Admittedly, such fears increase when we’re talking about closely related persons, such as brothers and sisters.[27]  But as others have noted, “in no other legal realm does the government criminally prohibit two people from having children because their offspring are more likely to inherit genetic defects.”[28]  Put simply, we have long since retired the idea that eugenics preferences are a reasonable basis for criminal justice policy.[29] To wit, Tay Sachs disease and sickle-cell anemia could be nearly wiped off the face of the earth if we regulated who could reproduce with whom based on such genetic sensitivity.  We think there is good reason to acknowledge that the criminal law cannot be used to serve eugenic ends.

            Related to the genetics-based fears is concern for the economic costs of allowing incestuous relationships. In other words, some might be tempted to justify criminal law incest prohibitions to reduce the costs associated with increased medical care for children of consanguineous parents. Again, the solution of using incest prohibitions is both over-broad and under-inclusive. First, some couples deemed incestuous may choose not to have children or may not be able to have children, and yet their conduct would still be subject to criminal sanction. Second, we don’t use the criminal law as a tool to reduce potential medical costs in any other context. When we criminalize murder or theft, it is not because we want to keep insurance payments down: it is because murder or theft is wrongful. Third, if we were genuinely concerned about increased medical costs, we could means-test all couples contemplating having babies with high risks of disease or complications. But this would be both an offensive policy to many people and it would sweep in far more persons than those who are blood relatives.   

            Concerns about relationships between adults and minors are far more weighty than in the context of consenting adults.[30]  While all of us agree that the possibility of coercion is far more significant in this context and that it is less likely that the minor in question is capable of truly informed consent, we disagree among ourselves how much to credit the consent of minors who choose to have sex with adults to whom they are related, and what measures might be taken to prove such consent to the state.[31] Although many states have a variety of statutory rape laws available to punish and deter this kind of activity, these laws may not be sufficient to address all the possible permutations of relationships.  Thus, we should also adopt laws that prohibit sexual relations between asymmetrical dependents.[32] Examples of asymmetrical dependents include, on the one hand, foster parents, adoptive parents, step-parents, and biological parents and, on the other hand, all minors under their charge and responsibility until that dependent is no longer under their charge and responsibility. Such a law would emit a clearer signal of which relations are prohibited than the mishmash that characterizes current incest laws.[33] 

            As to sexual relations strictly among minors, we are not all of one mind – proving the point, perhaps, that our lens of access to these laws does not require a singular conclusion on all family ties burdens.  At least one of us (Markel) thinks that sex between minors should also be regulated in family-neutral ways.  This would mean that either the criminal law applies to prohibit sexual activity for all persons under a certain age or that the criminal law does not apply in the context of consensual relations among those credited with the capacity to consent. Thus, there would be no categorical rules prohibiting sexual conduct between, say, seventeen year olds on the basis of family status alone. Under this view, those worried about physical or psychological coercion or abuse or retaliation can simply rely on the laws available to punish that independent misconduct. If sexual relations are to be decriminalized for those over an age of consent, then it should be immaterial from the state’s perspective whether they are brothers or first cousins or friends. The key would be to ensure an absence of coercion or abuse.[34]

            But at least one of us (Collins) finds these conclusions troubling. Accordingly, sex between minor siblings, for example, does not implicate a significant liberty interest that is worth protecting.  In addition, some of the concerns used to justify incest bans take on heightened importance in the context of minors. For example, because the potential public health ramifications of incestuous sex are admittedly non-negligible – and because it would be extremely hard for minors to give meaningful consent to such complex sexual relations – there may be sound reasons to preserve criminal statutes against incestuous sex among minors. Minors, because of their emotional immaturity, are more vulnerable to forms of psychological coercion.  In addition, minors in incestuous sexual relationships may be less likely to seek outside help in ending the relationship.  It would seem far easier, for example, to report your 40 year old uncle to the authorities for pressuring you to have sex than it would to report your brother. One of us (Leib) can’t make up his mind, though his sympathies are largely with Collins.

                        However one redrafts criminal law in the incest arena to address the various difficult issues surrounding adult-adult, adult-minor, and minor-minor incest, we doubt we will gain much traction with the political community that favors these laws. In large part, these relationships are criminalized because Americans view them with distaste or because they are, in some situations, religiously proscribed.[35] Nonetheless, we have reason to believe that these prohibitions, regardless of their motivation or provenance, are problematic from a civil liberties perspective, especially in the context of mature individuals engaging in consensual relations.[36] And by operating in the rigid and uncritical manner that they do, most incest laws are an unjustifiable burden as currently crafted.

            In sum, when we apply our normative framework from Part II, we see that in many jurisdictions, incest laws by their scope – that is, by their failure to track consent – serve as a burden imposed on those engaged in otherwise legal conduct on the basis of a defendant’s familial status or familial connection to the crime. We find this burden constitutes a form of unwarranted discrimination, by inhibiting the intimate associational rights of consenting mature individuals, because it cannot be justified in light of other substantial  government interests – the plausible fears associated with abusive incestuous practices – that can be promoted through more narrowly tailored alternatives.

---

[1] Again, here we would refer the reader to our earlier stated conviction that most problems that have a disparate impact on families are best regarded as problems that need to be addressed in the criminal justice system for all those concerned, regardless of whom it affects. So if one has a particular problem, for example, as we do, with the war on drugs and how it often leads to over-incarceration, the solution is not to have a band-aid for families but rather to fix the underlying policy of over-incarceration.

[2] If there are concerns about accuracy or crime-creation, then those should also be noted. See id.

[3] The fact that a mother is charged in the failure to protect scenario is a powerful example of the “mother-blaming” phenomenon that affects not only our legal institutions, but also our cultural norms about parenting. As Professor Becker states, “[M]others are expected to be much better and more powerful parents than fathers, always putting their children’s needs above their own and protecting their children from all harm.” See Mary Becker, supra note 55, at 15; see also Naomi Cahn, Policing Women:  Moral Arguments and the Dilemma of Criminalization, 49 DePaul L. Rev. 817, 822 (2000) (“Cultural middle-class norms expect all women to be primarily responsible for their children.  The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, punishing mothers particularly harshly.”); Jane Swigart, The Myth of the Bad Mother:  The Emotional Realities of Mothering 6 (1991) (“we live in a society that simultaneously idealizes and devalues the mother”).

[4] See Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. Chi. L. Sch. Roundtable 1, 3–4 (1995) (discussing domestic violence and child abuse as strong predictors of each other).

[5] See Becker, supra note 55, at 19 (noting that women are sometimes murdered after leaving an abusive spouse).

[6] See id.

[7] See id. at 31-32 (urging the provision of stronger “safety nets” for women in abusive situations); see also Linda Gordon, Feminism and Social Control, in What is Feminism? 63, 69 (Juliet Mitchell & Annie Oakley, eds., 1986) (“Good social policy could address the problem of wife beating in part by empowering women to leave abusive situations, enabling them to live in comfort and dignity without men”).

[8] We say “in many instances” because presumably there may be some cases where the more passive parent is just as culpable as the actual abuser, by providing active encouragement or a weapon or the like.

[9] Finally, a spouse’s history of abuse should certainly be a relevant consideration for a judge at the time of sentencing.

[10] As Mary Becker has written, “[T]he assumption should be that the adult who was not literally a hostage—not literally coerced at every available second—could have acted to end abuse,” at least by picking up the phone and calling 911. Becker, supra note, at 55. Becker adds, “No matter how weak the mother, she is in a much better position than the child to prevent abuse and owes a duty of care to her children.”

Id.

[11] Indeed, the child at issue in Jones, supra note 7, resided with a family friend at the time of his death

[12] It is important to note that more than one individual could fall into this category – for example, both the mother and the father of the child, assuming they both live with the child, and a grandparent who also lives in the home.

[13] We leave aside for now whether the age of majority for this purpose should be dropped from 18 to a lower age, such as 16.

[14] See Billingslea v.

Texas

, 780 S.W.2d 271 (Tex. Cr. App. 1989) (adult child’s failure to seek medical care for ailing live-in parent does not constitute criminal negligence because there was no statutory duty to act).

[15] See, e.g., People v. Beardsley, 150

Mich.

295, 113 N.W. 1128 (1907) (reversing manslaughter conviction of man who failed to aid his lover after she overdosed on morphine because he owed her no legal duty).  Indeed, some states have recently recognized that limiting liability to formal legal relationships would be plainly underinclusive. See State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court, 995 P.2d 951 (Mont. 2000) (finding that woman who had lived with a man for six years owed him the same duty to aid as would a legal spouse, but holding turned in part on fact that defendant was the one who had placed victim in peril by stabbing him)); State v. Miranda, 245 Conn. 209, 715 A.2d 680, 682 (Conn. 1998)  (concluding that person who is not biological or legal parent of a child but who establishes a “familial relationship” with live-in girlfriend has duty to protect child from abuse); Leet v. State, 595 So.2d 959, 963 (Fla.App.1991) (concluding that the live-in boyfriend of a child's mother owed a legal duty to the child to prevent abuse by the mother after establishing a “family-like relationship” for an extended and indefinite period).  We believe all states need to move in this direction and have a proposed a clear mechanism by which they could do so.

[16] We were unable to find a reported case addressing this precise scenario.  In light of the extent of discrimination against gay individuals in this country, however, we think it far too risky just to hope that courts in all states would extend the same protections and obligations to individuals in a homosexual relationship as they would to individuals in heterosexual relationships.  As a point of comparison, states are split about whether to allow same sex partners to recover in tort for wrongful death or infliction of emotional distress, even those states with domestic partnership laws. See D. Kelly Weisberg & Susan Appleton, Modern Family Law: Cases and Materials 404 (3d. ed 2006) (describing split among states on issues regarding tort recovery for same-sex couples).

[17] By decoupling omissions liability and marriage, we don’t run the risk of punishing what amounts to a purely private breach of contract through criminal law. Since there’s no bilateral exchange or consideration with our omissions registry, but a declaration to the state, the state may decide to punish those who make false claims to the state, or those who lull the state’s agents into complacency vis-à-vis a particular person.

[18] Our focus on voluntary care-giving as providing a useful basis for “imposing” liability in duty to rescue cases is consistent with the recommendations in Ethan J. Leib, Friendship & the Law, 54 UCLA L. Rev. 631 (2007).

[19]

Cf.

State

v. Garnett, 332

Md.

571 (1993) (Eldridge, J., dissenting) (distinguishing between “pure” and “impure” strict liability criminal laws).

[20] Asymmetrical dependency refers to relationships where one person possesses substantial authority and responsibility over another person who is largely dependent for his or her well-being on the authority-wielding person. Martha Fineman elaborates upon this notion. See Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies 8 (1995).

[21] Here we largely agree with the observation Justice Scalia’s dissent in Lawrence v. Texas, in which he noted that the Court’s majority reasoning makes it difficult to resist the conclusion we draw regarding consensual adult relations.

[22] See Dan Markel, The Sex-Ed License, Redux, available at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/the-sex-ed-lice.html (Feb. 19, 2008) (discussing shadow effects of incest, adultery, polygamy laws); Kaye L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 Emory L.J. 691 (2006) (lamenting shadow effects on consensual activity in statutory rape context).

[23] See Cahill, supra note 62, at 1569.  Cahill cites a number of courts that referenced these rationales in upholding incest laws.  See, e.g., In re Tiffany Nicole M, 571 N.W.2d 872, 878 (Wisc. Ct. App. 1997) (citing both the possibility of “genetic mutation” and the need “to protect children from the abuse of parental authority”); State v. Kaiser, 663 P.2d 839. 843 (Wisc. Ct. App. 1983) (same).  McDonnell cites a related concern of preventing the family from becoming “oversexualized,” with family members viewing other members as potential sexual partners.  McDonnell, supra note 65, at 353.

[24] See Note, supra note 61 (developing this argument).

[25] See, e.g., State v. Thompson, 792 P.2d 1103 (Mont. 1990) (concluding that a high school principal who threatened to block a student’s graduation unless she consented to sexual intercourse could not be convicted of crime of “sexual intercourse without consent”).

[26] We recognize that some proponents of incest laws may be sincerely motivated by religious views or other comprehensive moral views, but those views, in a liberal society sensitive to the rights of minorities, are not necessarily views that a liberal criminal justice system must abide by.  We also recognize there is a important separate issue of whether any incestuous marriages should be permitted; our inclination is to say that it’s not the state’s role to determine which adults should be entitled to receive the privileges of marriage.  Nonetheless, our focus here is on decriminalization and we restrict our discussion to that.

[27] Note, 119 Harv. L. Rev. at 2468 n. 31 (“The likelihood that offspring of very closely related partners (parent-child and siblings) will have a genetic disease is about 13%, which is much greater than the likelihood that two strangers, with no family history of the disease, will have a child with such defects, which is 0.1%.  Two less closely related partners, such as first cousins, have a slightly greater than 3% chance of having a child with a genetic defect.”) (citations omitted).

[28] Note, supra note 64, at 2468

[29] As to how these concerns are addressed outside the criminal justice system, we are more ambivalent. We recognize that some might try to distinguish eugenics (which might be thought to perfect a given gene pool) from genetics- based fears about incest, which are trying to avoid harms to future humans, as opposed to perfecting them. The problem with this distinction is that it assumes a moral baseline of non-incestuous relationships; if a community had endorsed incestuous relationships historically, then efforts to ban such relationships would be viewed by that community as “eugenics” by virtue of the goal of trying to improve the general issue of the community.

[30] It is our view that current incest laws are not terribly effective in regulating adult-minor sex. To the extent that incest laws produce sentencing discounts to sexually abusive family members, the incest regime is complicit in extending a family ties “benefit” with no adequate justification for under-punishing those who sexually abuse their dependents. See Markel, Collins, & Leib, supra note 2. Additionally, one of us has argued previously that our current laws fail to protect children from adult predators adequately, see Collins, supra note 2.

[31] Professor Markel, for instance, holds the view that if someone aged fifteen to eighteen invites and chooses consensual relations with another person aged 15 or higher, then that person should be able to engage in that relationship provided certain (admittedly difficult) conditions are satisfied. For example, we could have a policy by which sex education courses would be a prerequisite for sexual activity in the same way that driver education in some jurisdictions is a prerequisite for permissible driving. On this view, all persons under 18 wishing to have sex without fear of prosecution would have to secure a sex-education license, which they could get from a variety of possible private or public sources. See Dan Markel, Is Teen Sex Like Teen Driving? The Uneasy Case for the Sex-Ed License, at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/is-teen-sex-lik.html.  The education would foster awareness of pregnancy, birth control techniques, genetic risks, disease, and physical and psychological coercion. Additionally, even with such a sex-education license, adult-minor or minor-minor sex (regardless of consanguinity) would be presumptively or categorically prohibited when there is a relationship of asymmetrical dependence or co-habitation or supervisorial relationship in school, work, or extra-curricular activities. Last, in situations where there is a substantial age difference which could imply coercion, the relationship’s sexual turn would have to be declared in advance to a regulatory agency (or designated authorities) to certify that these conditions have been satisfied. Prosecution for statutory rape would be threatened in the absence of compliance. See also Dan Markel, Sex With Minors, Sex Between Minors, at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/sex-with-minors.html; Dan Markel, Marriage of Minors, Marriage Between Minors, at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/marriage-of-min.html.

[32] Such laws would also reduce (though, admittedly, not eliminate) “intrafamilial sexual jealousies and rivalries.” Unfortunately, many kinds of jealousies and rivalries are endemic to family life and it is not entirely clear there is a good basis to single out some concerns for criminal law sanction as opposed to the myriad other ones that could erupt in a given context.

[33] See Note, supra note 64, at 2469-70(detailing the confusing pattern of incest laws).

[34] As discussed above in note 175, we could permit or require the factfinder to infer that coercion is present in certain circumstances: e.g., do the participants live in the same home together, does one person serve in a care-giving or supervisorial role to the other? But both those questions would cut across family status blood lines. Concerns about medical risks and pregnancy would be addressed through the use of a sex-ed license, which would help secure a safe harbor from prosecution.

[35] See Mahoney, supra note 63, at 28(describing how “community norms” are one of the rationales for incest legislation).  She also offers religious history and family welfare as potential justifications for incest bans. 

[36] Cf. Lawrence v. Texas, 539 U.S. at 599 (Scalia, J., dissenting) (noting that the liberty rationale for invalidating bans on same-sex sodomy statutes entails the invalidation of much other morals legislation including bans on consensual incestuous relationships).

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.

Punishing Family Status: More Examples

During the previous two weeks, I alluded to an article by Ethan, Jennifer Collins, and myself, entitled Punishing Family Status. Here's the abstract, the introduction, and the first half of Part I, where we talked about vicarious and omissions liability and incest. Below we discuss some of the other sites where the criminal justice system discriminates against defendants based on their family status --that is, places burdens on defendants that would not otherwise exist in the absence of a particular family status: bigamy, adultery and failure to pay child support.  Please note that we have removed the formatting and footnotes in the excerpt below.

D.            Bigamy

Marlyne Hammon knows what it’s like to feel hated and hunted. In 1953, when she was an infant, her father—along with dozens of other men in her tiny community of Short Creek, Ariz. — was arrested and sent to jail on charges of polygamy. She, her mother and siblings were forcibly exiled from the community and sent to live with a family in a nearby city. Her father was released after a week, but because the family feared further prosecution, they lived apart and corresponded in secret for the next six years. “Our community had this idea that we should live our lives quietly to avoid trouble,” she says. “We were taught not to make a big ruckus.”

                Not anymore. Hammon, who’s involved in a polygamous relationship, is a founding member of the Centennial Park Action Committee, a group that lobbies for decriminalization of the practice. She’s among a new wave of polygamy activists emerging in the wake of the gay-marriage movement—just as a federal lawsuit challenging anti-polygamy laws makes its way through the courts and a new show about polygamy debuts on HBO. “Polygamy rights is the next civil-rights battle,” says Mark Henkel, who, as founder of the Christian evangelical polygamy organization TruthBearer.org, is at the forefront of the movement. His argument: if Heather can have two mommies, she should also be able to have two mommies and a daddy. Henkel and Hammon have been joined by other activist groups like Principle Voices, a Utah-based group run by wives from polygamous marriages. Activists point to Canada, where, in January, a report commissioned by the Justice Department recommended decriminalizing polygamy.

Although there is some variation around the edges of incest prohibitions, no such ambivalence exists regarding criminal laws prohibiting polygamy.  These bigamy laws are universal around the country.  Yet, these prohibitions raise substantial questions about the proper scope of the criminal law and its relationship to issues of family status. 

Bigamy laws in the United States, broadly stated, prohibit an individual from entering into multiple and simultaneous marriages, when the first spouse is still alive and that initial marriage relationship has not been terminated.  The rationales for prohibiting polygamy are familiar and, in America, deeply rooted.  They are nonetheless under-scrutinized. 

As a recent study of polygamy avers, many “[p]opular depictions of polygamists in the media and in society generally focus on the prevalence of underage brides, accounts of sexual abuse, and the subservient role of women in these relationships.”  Indeed, historically, polygamy has been decried as a tool to subordinate women. But the same has been said many times about marriage itself and the legal institutions accompanying it. If anti-subordination is the goal, then a critical empirical question is whether plural marriage prohibitions in fact achieve marginal harm reduction. In light of the fact that many prominent feminists have over the years argued for decriminalizing bigamy, including active support by Susan B. Anthony and Elizabeth Cady Stanton, we should evaluate more carefully blanket claims made in the absence of hard empirical evidence.   

Moreover, as the critics of bigamy note, the presence of abuse or coercion, while important to acknowledge and address, is something that can be independently punished through the use of other criminal laws.  It also seems necessary to develop empirical evidence about whether abuse or coercion is in fact more prevalent in the plural marriage context than the single marriage context.   Indeed, perhaps because of the marginalization of polygamous practices, polygamy supporters argue that it is harder for victims or allies of victims to report abuse because it might lead to bad consequences for the victim.  Of course, this same dynamic is a concern even in monogamous relationships; but unlike monogamous relationships, the victims of abuse in polygamous relationships might face serious collateral consequences from the state, such as the termination of parental rights. Despite the appeal of some of these recent arguments in favor of legalizing polygamy, opposition to the practice continues to be deep-rooted in American society:  as of 2004, 92% of Americans still viewed polygamy as immoral. 

E.            Adultery

“John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage.”  Bushey was prosecuted because his spurned lover went to the police to complain when the affair ended.  He eventually pled guilty and was sentenced to twenty hours of community service.

Adultery laws, at least as crafted in some jurisdictions without fornication statutes,  prohibit a married individual from engaging in extramarital sex, notwithstanding that such sexual relations would not otherwise be subjected to legal sanction.   Perhaps because of the pervasiveness of adultery,  a bare majority of states have gotten out of the business of regulating extramarital relations,  even though large majorities of Americans continue to view adultery as immoral.   Regardless of the cause of adultery’s relative demise as a crime, we recognize that most jurisdictions do not actively prosecute or punish this misconduct anymore, even though 23 states and the District of Columbia still have statutes criminalizing this conduct   Nevertheless, some states have recently self-consciously refused to abandon their adultery laws: Maryland even tried to expand its adultery statute to “modernize” it, attempting to criminalize extra-marital affairs with same-sex partners. 

Although one might be tempted to dismiss the significance of adultery laws today, we are loathe to do so in light of continued enforcement of such laws in some jurisdictions,  especially in the military.  Indeed, although civilian courts have generally seen a decrease in adultery prosecutions, there is a veritable explosion of such prosecution in military courts, often traced to the integration of women into the armed forces in the late 1970s.   And during the Clinton-Lewinsky scandal, many members of the armed forces were especially critical of their commander-in-chief, who undoubtedly would have faced a court-martial on adultery-related charges if he had been a mere service member.

Moreover, there is an odd discrimination resulting from adultery laws against heterosexuals, which we think needs some articulation and evaluation.   It goes without saying that as applied to the defendant who is married, adultery laws are a clear and conventional family ties burden. Whether these burdens can be persistently justified in the criminal justice system is an issue we hope to address in what follows.

F.            Nonpayment of Child Support

In 1997, an Anchorage, Alaska father was sentenced to serve five days in prison and spend five years on probation for failing to pay almost $98,000 in child support.  A government official stated that “Our job is to collect money for children. Parents need to realize there are penalties for ignoring their children.”

Ordinarily, the failure to pay a debt to a non-governmental entity (like your local utilities provider) is not a criminal act;  an aggrieved party is forced to pursue civil remedies to obtain redress.   In contrast, failure to pay child support is a crime.  For example, the Child Support Recovery Act  (amended in 1998 as the Deadbeat Parents Punishment Act)  makes it a federal crime to owe more than $5000 in child support or to be in arrears for longer than one year if the child owed the support lives in another state than the delinquent parent.  In addition, many states have statutes criminalizing a parent’s failure to pay child support.   This is yet another way family status can turn a non-criminal act into a criminal one.

Critics of efforts to punish “deadbeat” parents charge that many parents fail to pay because of poverty, and not because of willful indifference to their children’s needs.   Further, incarcerating these parents obviously severely restricts, if it does not eliminate altogether, these parents’ ability to pay any support and, more importantly, to have a meaningful relationship with their children.  Indeed, placing so much emphasis on parents’ economic contributions has the potential to devalue the non-economic contributions that parents make to their children, such as disciplining and nurturing them.   This is amplified given the reality that it is by and large men who are jailed for failure to pay child support, reinforcing a view of the father as meeting his parental obligations (and discharging them completely) through financial contributions.

What could be the justification for incarceration in the child support context?   Perhaps child support debts are different in kind than other debts and failure to pay is therefore more reprehensible; it should be viewed as the equivalent of “stealing from your kids.”   As Professor Oman has written, “the law insists that the failure to support one’s children is an act of particular blameworthiness that we are willing to accept extra costs to avert and that we are willing to punish with greater severity than other kinds of non-payment of debt.”   Or, perhaps, these laws can be vindicated as a form of the “omissions liability” statutes we’ve considered above: parents have a non-waivable duty to protect and support, which is parallel to the duty to protect and rescue in the omissions liability context.   

The Ninth Circuit emphasized these kinds of rationales in finding the Child Support Recovery Act constitutional.  The Court emphasized that a child support debt is fundamentally different than other debts:  “We note that the obligation in question is not an ordinary debt; it is an award imposed by a state court to ensure the sustenance and well-being of the obligor’s children.”   The Court then added:

We start with the self-evident observation that the relationship between parent and child is much more than the ordinary relationship between debtor and creditor. The parent is responsible for bringing the child into the world and in so doing assumes a moral obligation to provide the child with the necessities of life, and to ensure the child’s welfare until it is emancipated and able to provide for itself. When parents neglect their children, this raises more than a private legal dispute. It is a matter of vital importance to the community, and every state now enforces, by means of criminal sanctions, the parent’s obligation to support children within his custody.

Another way to understand stiff penalties for non-payment of child support is through the utilitarian lens of norm projection and general deterrence. Thus, even if putting one caring parent in prison hurts the relationship between that parent and his or her particular children, the credible threat of stiff penalties might serve to educate the public about the seriousness with which society views parental obligations to children as well as encourage those parents who might otherwise shirk those obligations to fulfill them.

Punishing Family Status: Some Examples (Part I)

Yesterday, I posted the introduction to a working draft of a paper, Punishing Family Status, by Ethan, Jennifer Collins and myself.  Today we provide the first half of an overview of places within the criminal justice system where defendants are burdened in some way on account of their family status.  I should note that what's below is not intended to be comprehensive; for instance, we have very recently come across some statutes that make it a crime for persons to not support their parents--filial responsibility statutes. We don't discuss these statutes in the paper below, but we plan on discussing them more in our book version of the project.  Of course, if you have any thoughts about other criminal laws that should fit into our analysis described below, please let us know via email. Please excuse any formatting errors that might arise in the reproduction here--and note that we have omitted our footnotes here.

I.  AN OVERVIEW OF FAMILY STATUS AND CRIMINAL JUSTICE BURDENS

 

Certain crimes permit prosecution of a defendant for conduct that would not otherwise be unlawful in the absence of a defendant’s familial connection to the crime. Examples include certain vicarious and omissions liability statutes, incest, bigamy, adultery and nonpayment of child support. Thus, to illustrate, incest statutes proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a debt. In all of these examples, the familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct. We examine these kinds of crimes in turn. Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system’s decision to criminalize certain conduct on the basis of family status.

 

A. Omissions Liability

 

In June 2002, a 21 year-old mother named Shavon Greene was charged with aggravated manslaughter after her boyfriend allegedly beat her 21 month-old daughter to death. The prosecutor did not allege that Greene was even present during the beating; instead, she was charged because she had disregarded warnings from a social services investigator not to leave the child alone with her boyfriend. Greene eventually pled guilty to culpable negligence in the child’s death.

 At a high level of generality, the dominant rule in American criminal justice (as well as tort law) systems remains that citizens are under no obligation to rescue each other. In other words, even if the failure to act to help another person in distress would constitute a moral failing, the criminal justice system does not generally impose liability on those who simply keep on walking.

The exceptions to the general rule are well-known, though the prospect of criminal law enforcement of an exceptional duty to rescue is much more unusual than tort law enforcement. As the D.C. Circuit stated in Jones v. United States: 

There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntary assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

It is the second category that is of special interest here, for the status of husband to wife and parent to child are paradigmatic, even if not exclusive, examples of status relationships in which one owes a duty to rescue sufficient to trigger criminal responsibility (rather than mere tort liability). Accordingly, parents are regularly held criminally liable for neglect for failing to protect a child who was being sexually abused by another individual, and held criminally liable for manslaughter for failing to protect a child from fatal physical abuse inflicted by another. These prosecutions exemplify the family ties burden phenomenon by which persons in certain family relationships are held accountable for harms to others even when those harms are inflicted by another independent actor.

  Not surprisingly, such prosecutions have been hotly debated by the legal academy. Some of the debate has revolved around whether the passive parent should be entitled to argue that her status as a battered person herself should excuse her failure to act. Perhaps the most highly publicized case in this regard involved Lisa Steinberg, who was beaten to death by her father while her mother, Hedda Nussbaum, allegedly did nothing to prevent the abuse. After Nussbaum established that she too had suffered serious physical abuse at the hands of Joel Steinberg, the prosecutor’s office elected to drop charges initially filed against her.

What are the problems with failure to prevent abuse prosecutions? First, critics charge that such prosecutions disproportionately target women. Indeed, women are more likely to bear the brunt of such prosecutions than men simply by virtue of the fact they are more often the custodial parent. Further, women are typically held to a higher standard of care in childrearing relative to men. As Naomi Cahn and Marie Ashe have argued, “Cultural middle-class norms expect all women to be primarily responsible for their children. The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, penalizing mothers particularly harshly.”  But supporters of prosecutions of passive parents counter that even a parent’s status as a victim of domestic violence cannot categorically excuse her failure to act to prevent the abuse of her child. For example, Mary Becker has suggested that “mothers, even when abused themselves, should be held to a high standard of care for their children and should normally be held responsible for their own abuse or neglect of their children and for failing to protect their children from others’ abuse and neglect, provided that they knew or had reason to know of the harm to their children.” That’s because even though the mother may have been weakened physically or mentally by virtue of the abuse she has suffered, unless she is “literally a hostage,” she still has options to employ in an attempt to protect her child that are not available to the child itself; young children, after all, are utterly defenseless and completely dependent upon adults for their protection.

 

B. Vicarious Liability

  In St. Clair Shores, Michigan, Susan and Anthony Provenzino were charged with a misdemeanor for failing to “exercise reasonable control” over their sixteen year-old son. Alex Provenzino had committed a number of crimes, including burglarizing churches and homes and attacking his father with a golf club. Despite knowledge of some of his burglaries, the Provenzinos had supported Alex’s release from juvenile custody, after which he continued to commit crimes. The jury convicted the Provenzinos after just fifteen minutes of deliberation. The parents were each fined $100 and ordered to pay $2000 in court costs.

 

In the civil justice system (rather than in criminal justice), courts will sometimes hold a defendant (like an employer) liable for compensatory damages to an injured party even if the employer is not personally at fault for his employee’s misconduct. It’s often thought that such vicarious liability can be justified because if an innocent enterprise is made to recompense the victim, the enterprise can more easily absorb the cost of the tort and pass on the cost to consumers, which has the effect of minimizing burdens on any single tort victim. This rationale for vicarious liability erodes, however, when the liability leads to a criminal penalty against an individual rather than a civil payment for compensatory damages. After all, in the context of fines, the victim is not being paid; rather the state is. And the defendant is not being forced to merely pay for harm; the defendant is being condemned through punishment for wrongdoing that someone else committed even if the defendant was unaware of and did not participate in the wrongdoing and even if the defendant instructed the wrongdoer that such misconduct was forbidden.

Despite this disjunction between rationale and scope, jurisdictions regularly impose vicarious criminal liability. We sometimes see vicarious criminal liability in the context of public welfare offenses to ensure public health and safety. We also see vicarious liability in the context of the crime of conspiracy; co-conspirators have been held liable for substantive crimes committed by another member of the conspiracy, through the Pinkerton doctrine, even if not present at the scene of that crime or aware of the crime’s commission. These efforts are controversial and have been subject to substantial criticism.

But in the family context, we have seen the envelope of vicarious liability pushed even further. In the Pinkerton scenario, for example, some precursors for liability are that the actor commit the criminal act of joining the conspiracy and that the additional crime at issue be committed in furtherance of the conspiracy and be reasonably foreseeable. But when it comes to family members, we are seeing efforts to impose liability in the complete absence of criminal conduct by the parents.. Although such efforts have a long history, there has been a new spate of such laws in recent years. In the last year, for example, a Cleveland suburb adopted an ordinance holding parents criminally liable if their children are charged with a crime; a third conviction under the statute could result in parents serving 180 days in jail. Although an Ohio court recently ruled the Cleveland ordinance unconstitutional, it remains true that the renewed enthusiasm for vicarious parental liability commands attention. One community in Alabama recently proposed that parents be held criminally liable when minors consume alcohol in their homes, even if the parent had no knowledge at all that the alcohol was being consumed.

  According to one commentator, criminal parental liability statutes fall into four categories. “The first two categories, truancy and curfew laws, generally impose criminal liability on a parent who knowingly allows his or her child to commit acts (staying out past an established curfew; not attending school) which would not be criminal if committed by an adult.” The third category, “contributing statutes,” impose liability on parents, or potentially any adult, who affirmatively contributes to the delinquency of a minor for, by example, “sending a child to a brothel” or providing a weapon.

The fourth category is the most controversial and is exemplified by the Cleveland ordinance referenced above – statutes that in essence convict parents for crimes committed by their children, or even for “unsavory activities engaged in by children,” on a “failure to supervise” theory or the like. For example, Louisiana has a statute subjecting parents to up to six months’ imprisonment for permitting an unlicensed minor driver to drive a vehicle if the minor ends up involved in an accident that resulted in death or serious bodily injury to another person. The statute also makes it a crime for a parent, “through criminal negligence,” to permit “the minor to associate with a person known by the parent” to be a gang member, a convicted felon, or a drug dealer or user. A parent convicted under this particular provision faces up to thirty days in a jail and a $250 fine. The statute allows a parent to escape liability under these latter provisions if they sought assistance from various agencies in modifying the child’s behavior or if they referred “the child to appropriate treatment or corrective facilities.”

There are two separate inquiries related to these legislative efforts: First, are they likely to be effective at reducing the incidence of crime by minors? Second, even if effective, is it just to hold parents liable for crimes committed by their children? Professor Dan Filler suggests that such statutes could be effective if the consequences for violation were sufficiently severe and certain, although of course we might not be willing to live with stakes of such high magnitude. For example, if parents whose children threw an alcohol-filled party for their friends faced a felony conviction and a lengthy jail term, most reasonable parents would quickly “lock up the booze and perhaps install a nanny-cam to monitor the house.” It is also important to note that these statutes are only likely to be effective if they are enforced more than just occasionally; even though these statutes are on the books in a number of states, criminal prosecutions remain relatively rare. Still, there have been some high-profile prosecutions, including the St. Clair prosecution discussed above.

But even if these statutes were made effective, would it be just to use them against parents? Support for these statutes is apparently motivated by the belief that “poor parenting” is a root cause of much of the juvenile crime in this country. As one family outreach worker exclaimed, “We have an adult problem, not a children problem . . . If we can get our adults together, the children will naturally fall in line.” One commentator has suggested that that “the rationale behind the parental liability laws – punishing the parents to reduce acts of juvenile delinquency by their children – must be based on a series of interconnected assumptions:” first, that the nature of the child’s behavior is directly – if not primarily – caused by the quality of the parenting in the household; second, that we can somehow create a “universal model of adequate parenting,” which all parents can and should adopt regardless of their circumstances; and third, that the threat of punishment will induce parents to adopt this government-sanctioned model of parenting.

Critics of these statutes, on the other hand, argue that the link between poor parenting and juvenile crime is far less certain than proponents suggest. Juveniles are no doubt also profoundly influenced by their peers, by their schools, by their communities, by the media, and perhaps by their genetic make-up. In addition, the threat of criminal liability might actually negatively impact parenting, rather than enhance it. One critic suggests that parental responsibility statutes will induce some parents to “over-parent[], that is by either severely restricting their child’s freedom or by excessively punishing the child.” Other parents might respond by “under-parenting,” that is, by distancing themselves from their children “by filing ungovernability or similar petitions to transfer responsibility to the state.” In either case, the relationship between parent and child would become more adversarial and negative, rather than more productive and positive.

 

C. Incest

  In 1997, Allen and Patricia Muth were convicted of incest after they entered into a sexual relationship and had four children. Allen and Patricia were biological brother and sis-ter, although they did not meet until Patricia was eighteen because she had been in foster care since she was a baby. At the time of their convictions, Allen was 45 and Patricia was 30. At the time of sentencing, the judge stated “I believe severe punishment is war-ranted in this case. . . . I think they have to be separated. It’s the only way to prevent them from having intercourse in the future.” The judge then sentenced Allen to five years in prison and Patricia to five years. Their parental rights to at least some of their children were also terminated because of the incestuous relationship.

 

Incest remains one of the enduring sexual taboos. It is also yet another compli-cated example of a situation where criminal liability may attach to a person only on ac-count of some familial status. While prohibitions of incest are usually made in a blan-ket form, in theory they can be grouped into three different categories: first is regulation of sex between adults; second is regulation of sex between an adult and a minor, and third is regulation of sex between minors. Most jurisdictions are unlikely to make these distinc-tions in part because they don’t even inquire into whether the participants jointly consent to the sexual activity. This raises normative questions we address in Part III.

Forty-seven states criminalize some forms of consensual sexual relations be-tween family members, although there is some variation between the states in terms of what relationships are prohibited. All states with criminal incest statutes ban sexual re-lationships between parents and their children, regardless of the child’s age. And all of those states but one also ban sexual relationships between siblings; most ban relationships between aunts and uncles and their nephews and nieces. There is more divergence on the question of cousins; only eight states criminalize sexual contact between first cous-ins, but twenty-five states do not permit first cousins to marry. Some states also extend their prohibitions beyond blood relationships: “twenty-two states criminalize sex between stepparents and stepchildren” and some (but not all, interestingly) states treat adopted children the same as biological children for purposes of incest prohibitions.

What are the rationales behind these incest prohibitions? The most commonly cited rationale for prohibiting consensual relations is that incestuous relationships have the potential to create children with genetic problems if the parties decide to reproduce. Moreover, incestuous relationships have special potential to be abusive and nonconsen-sual, and this coercion may be difficult to detect. Additionally, some have viewed the incest taboo as a way to “prevent intrafamilial sexual jealousies and rivalries” or to facili-tate the purported “social advantages of forming ties outside the family.” But these ra-tionales cannot account for the breadth of the incest prohibition in many states; for exam-ple, consensual relationships between adult adopted siblings raise neither genetic difficulties nor the specter of coercion. It is therefore impossible to underestimate the influence of the “disgust factor.” In large part, these relationships are criminalized be-cause Americans view them with distaste or because they are, in some situations, relig-iously proscribed.

The topic of consensual adult incest has actually been the subject of some legal and political discourse of late because of its links to the same-sex marriage debate. Some have suggested – with an intention to alarm – that if we legalize same-sex marriage, the legalization of incest is sure to follow. But in contrast to the issues of gay rights and same-sex marriage, there is no committed mainstream advocacy movement of which we are aware that is currently arguing for the liberalization of incest laws.

Similarly, there is very little legal scholarship seeking to make an affirmative case for greater recognition of intra-familial romantic relationships; rather, discussions about incest usually involve simply pointing out that many of the arguments made in fa-vor of the laws are problematic. For example, commentators remark that the evidence related to the possibility of genetic harm is far less certain than once believed, and, in any event, many of the relationships currently prohibited do not trigger this concern at all.

There are a few recent exceptions in the academic literature to this general pat-tern. For example, Christine Metteer argues that the individual’s constitutionally pro-tected right to marry trumps the state’s interest in prohibiting incestuous marriages when the parties are related only by affinity rather than consanguinity. More provocative is a recent article by Ruthann Robson, who suggests that “the proffered explanations for in-cest prohibitions should be deeply problematic for any same-sex marriage advocate.” She argues that attempts to justify prohibitions against incest by appealing to religion or longstanding community mores should be soundly rejected, because “tribal customs should not govern our current cultural mores and constitutional notions any more than Leviticus should prevail.” She also argues that we should reject the genetics justifica-tion, because it “rests upon identity between marriage and procreation – the same logic that is used to resist same-sex marriage.” Whatever one makes of these normative arguments, incest laws fit the more general pattern of punishing family status in certain circumstances within the criminal justice system.

Punishing Family Status: An Introduction

Earlier this week, I mentioned that Ethan, Jennifer Collins and I have completed a working draft of our paper, Punishing Family Status, and have shipped it off to a number of law reviews.  Today I reprint below the introduction--sorry for the formatting bloopers. In subsequent posts, I'll share the following sections of the paper. We're grateful for any comments or questions sent via email to us. When we've done some more revising, we'll put a version up on SSRN. This paper will be part of our book project, tentatively entitled, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  I'll be presenting this paper a couple times in the next month and we are excited to share our findings and conclusions more broadly. Here's the intro.

On December 21, 2007, Molly Midyette was convicted of knowing and reckless child abuse as a result of the death of her ten-week-old son. The prosecutors did not allege that Molly beat her son to death, but instead that she failed to protect her son from repeated beatings inflicted by her husband Alex. At the time of his death, the baby was suffering from 27 fractures and a brain injury. Midyette faces a mandatory sentence of 16 to 48 years in prison because of her failure to act.[1]

Stories like Molly Midyette’s abound. In the absence of her family status, Molly’s omission, or failure to rescue her child, would trigger no criminal liability. But because of it, she faces a very significant sentence. In this article, we examine the various places in the American criminal justice system where the law imposes burdens on defendants on account of their familial status or familial connection to the crime.[2] Where do these burdens exist? Why do we have them? What’s wrong, if anything, with them, andhow can they be reformed? These questions are at the heart of our project, a project that picks up the story from where we last left off just a year ago.

Specifically, in a study we published last year,[3] we examined how in many instances the criminal justice system affirmatively privileges defendants who are members of a state-sanctioned family unit. Our study uncovered a range of what we called “family ties benefits”: for example, in some states family members who harbor their fugitive relatives are exempt from prosecution; many states exempt family members from testifying against each other even in the most serious felony cases, and individuals who kill or rape family members are often subject to less serious penalties than those who attack acquaintances or strangers.[4] In that article, we argued that extending such privileges on the basis of family status can incur serious but often obscured costs in the criminal justice system, particularly in terms of ensuring gender equality, fairness across similarly situated offenders, accurate outcomes, and crime prevention in the criminal justice system. We suggested that more careful design of such policies could help avoid many of the costs associated with what we called “family ties benefits.”[5]

But standing alone that picture is incomplete and with this companion article we now try to round out the picture. As mentioned above, some forms of criminal liability are triggered because of one’s familial status – and for reasons that seem to have nothing to do with compensating for the “family ties benefits” we have already identified. These crimes include vicarious liability imposed on parents because of crimes committed by their children, omissions liability for failing to prevent harm to family members, and criminal liability for nonpayment of child support. Defendants are also burdened on account of their family status when they face prosecutions for incest, adultery, and bigamy. In all six of these instances, in the absence of the particular familial status of the defendant, the action or omissions at issue would largely be ignored by the criminal justice system or, in some cases, treated more leniently.

This Article analyzes these “family ties burdens” and asks whether they are justifiable or could be justified if reformed somewhat. Although scholars have considered some of these burdens individually, our contribution here is viewing these burdens synthetically and explaining what sense can be made of them once taken as a whole. Thus, in Part I, we survey the various sites in the criminal justice system where defendants who are members of families face special burdens, either through the creation of liability or the enhancement of punishment, that would not be visited upon individuals who are not members of a family unit.

We begin Part II by explaining why we have generally taken a “defendant-centered” perspective in thinking about the sites of family ties burdens, since many “burdens” on defendants based on family status may conversely serve to advantage the family members of such defendants (and potential defendants).[6] Focusing on family ties burdens from the defendant’s perspective helps raise awareness of why such burdens are normative red flags. As we explain, most centrally, they have tremendous potential to discriminate. Consider the example of omissions liability. When the state charges an individual because of his or her failure to protect another human being from harm, the state is signaling that the relationship at issue is one worthy of special protection from the state. But 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 “omissions” burden are excluded. A hypothetical Jill cannot rely upon the state to signal to her life partner Denise that Denise is obligated by law to prevent harm to Jill. When the state makes choices regarding families, and uses the criminal justice system to send normative signals about those choices, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, targeting persons with unusual treatment on account of familial status is an under-inclusive (and, at times, over-inclusive) mechanism to distribute both the tangible and expressive benefits conferred by the criminal law.

The rest of Part II constructs a normative framework to explain under what circumstances burdening family status might be justified. We highlight that the vast majority of the burdens implicate the core functions of families – the care-giving function. We impose liability on parents for their omissions because we believe they have a special obligation, one worthy of enforcement through the criminal justice system, to care for their children by protecting them from harm. If we structure burdens to revolve around the care-giving function, rather than on an individual’s status as a member of a state-sanctioned family, we have the potential to be far more inclusive, and indeed more protective, than if we base burdens on family status alone.

But we also show that there is, we think, an underappreciated (albeit imperfectly executed) method to the criminal justice system’s allocation of family ties burdens. The criminal justice system tends to enforce family ties burdens against those who have voluntarily chosen their care-giving role. That is, the care-giving function of the family is relevant to criminal justice especially in those cases where an individual has voluntarily entered into a status relationship and enjoyed the privileges associated with that relationship, making it seem more just to be required to carry some burdens in return. Building upon this internal coherence, we suggest that a voluntary care-giving orientation to burden allocation in the criminal justice system is much more attractive than allocation on formal familial status alone.

Part III rethinks the family ties burdens we identify in Part I, in light of the normative framework in Part II. We hope to show how many of the criminal justice system’s family ties burdens can be preserved in some form, so long as they are reconstructed to avoid the substantial costs of using family status alone to distribute burdens. In some cases, this won’t be possible, and we explain why and what to do about it.

One important caveat. There are many wonderful studies of the way the criminal justice system causes devastating harm to families and communities, especially in light of our incarceration practices.[7] There is no doubt that many of the criminal law’s policies and practices disadvantage families in many ways – and without attention to this sort of disparate impact against families, policy designers risk tearing our social fabric at the seams. We agree that this lens is a critically important one in evaluating criminal justice policies. Nevertheless, this lens tends to track indirect results of other policies. For example, although lengthy jail sentences for minor drug crimes result in the tragic situation of too many children growing up without access to a parent, surely the primary intent of drug sentencing laws is not to separate children and their parents.

Our focus here is different and has yet to be sufficiently addressed by the community of scholars interested in how the criminal law pressures families. Here, we examine those distinctively purposeful practices that consciously target members of families for special burdens on account of their familial status. Scholars have been successful in analyzing the effects of certain criminal justice policies and practices on the family. But most scholars have not recognized the panoply of laws expressly written to disadvantage family status in some areas. It seems important and necessary to pause and think through how and why our laws intentionally punish family status, and how the underlying goals of such a choice might better be served. This Article hopes to clear that ground.

In defining our focus this way, we do not intend to suggest that the particular liabilities addressed in this Article are necessarily guided by the intent of hurting or burdening family life as such. Indeed, it may be that many burdens on family status are “remedial” or intended to benefit family life even if they penalize particular defendants on account of their familial status. But it is worth remembering that many laws disadvantaged women, for example, in the name of “protecting” them. Our purpose here is to excavate the family burdens currently imposed by the criminal justice system and to assess their desirability both now and as they could be.

---

[1] Bill Scanlon, Mom Guilty in Baby’s Death, Rocky Mountain News (Dec. 22, 2007).

[2] Although we use the phrase the American criminal justice system, there are actually many criminal justice systems in the United   States operating at the local, state, and federal level under a host of laws, ordinances, principles and policies. Not all the practices we describe exist around the country in every single system but they are by no means atypical either.

[3] See Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. Ill. L. Rev. 1147.

[4] See id.; see also Jennifer M. Collins, Lady Madonna, Children at Your Feet: The Criminal Justice System’s Romanticization of the Parent-Child Relationship, 93   Iowa L. Rev. 131 (2007).

[5] See Markel, Collins & Leib, supra note 2, at 1190-1199.

[6] We acknowledge that in some instances victims may feel as if they too, as well as defendants, have been harmed by family ties burdens.

[7] See, e.g., Donald Braman, Doing Time on the Outside (2004).

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.

Finally, Family Ties on SSRN!

No, not screenplays with your favorite episodes of Tina Yothers.  Rather, at long last, I'm happy to announce that Ethan, Jennifer Collins (law, Wake Forest), and I have posted on SSRN a draft of our paper about the intersection of the criminal justice system and the family.  Here's the link.  Download it and make us feel better.  The paper, whose title we changed from earlier drafts, is now entitled: Criminal Justice and the Challenge of Family Ties.  Short is the new long, right? So we dropped the colon.  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 and benefits 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 and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.

You still haven't downloaded it? Ok, here are some of our crazier more provocative claims and findings. 

First, did you know that in fourteen states you could harbor a fugitive without penalty--as long as that person is a family member? We think that's a bad idea and we'll tell you why. 

Second, we think the evidentiary privileges for spouses and family members in the criminal justice system should be eliminated. Full stop.  Read the paper, and we'll tell you why. 

Third, we explain why sentencing discounts for people on account of family ties and responsibilities should be eliminated.  We argue that such discounts are wrong, illiberal, and bad policy, and that in the case of the "irreplaceable caregiver," time-delayed sentencing should be used instead where possible.  "What's time-delayed sentencing?" you ask.  Read the paper and we'll explain...

Seriously, this paper was a lot of fun to write with Ethan and Jennifer, and I'm taking it on the road this coming month, presenting it at Miami, BC Law, and Osgoode Hall in Toronto.  It doesn't come out until the summer, so we'd really love your feedback and comments.  Many thanks.

Contracts and the Day of Atonement

I always enjoy teaching Jacob & Youngs v. Kent (a/k/a "The Reading Pipe Case") around Yom Kippur.  Consider Cardozo's pronouncement in the majority opinion:

The willful transgressor must accept the penalty of his transgression. . . .  The transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong.

More generally, Contracts is a great course to ponder on the night Yom Kippur starts, during the Kol Nidre service.  The service is a ceremonial nullification of all promises made during the year.  Here's a Birnbaum translation:

All personal vows we are likely to make, all personal oaths and pledges we are likely to take between this Yom Kippur and the next Yom Kippur, we publicly renounce. Let them all be relinquished and abandoned, null and void, neither firm nor established. Let our personal vows, pledges and oaths be considered neither vows nor pledges nor oaths.

What kind of law can contemplate the routine nullification of promises year after year?  Probably not one based on promissory liability at its core.  If you find yourself bored during services this year, take some Fried or Atiyah into synagogue with you and try to understand the deep meaning of promise nullification.

NOTE: Most assume that the nullification applies only to promises made with oneself or with god, not standard commercial promises made between people (who grow to rely?).

Back and bruised

Well, I've taken a blogging hiatus of about a month to recover from having a new baby (I'll spare you all the fabulous pictures).  But many things have happened to me in the interim:

1.  I moved cross-country (with wife, baby, and dog) to take up a visiting appointment at Brooklyn.  My new colleagues have been very welcoming and have eased the transitions associated with the move.

2.  An individual in California posing as "Ethan Leib" (with phony ID to match) has been walking into branches of my bank across the state and taking all my money -- despite a fraud alert on my accounts.  They even stole thousands from my 6-week old daughter's college fund.  How mean!  The tellers and "credit fraud analysts" are not doing their jobs  so I am poorer and less "Ethan Leib" than ever.  Even though many credit agencies and banks have measures in place to prevent identity theft, they all still rely on tellers, banks, and others being properly trained.

3.  Most importantly, I managed somehow to finish, place, and post my article, "Friendship & the Law."  Download it, read it, and tell me why you disagree.  Amazing what you can do when you stop blogging temporarily!

I'm happy to be back on-line and I'm very grateful to everyone else here that has been doing a great job keeping this site active and interesting....

Fatherhood

I've always thought it a bit weird when law professors blog pictures of their new babies.  What do I care about your baby?  But now since it is my baby, I don't much care whether it is professional or whether you care.  Here she is with her father: 

Clementine L. Schonfeld was born yesterday at 12:56pm and weighed in at 8 pounds, 5.6 ounces.  She is very cool.  Of course, my amazingly strong wife did all the hard work (without medication, to boot), so I'm not sure who I'm more in awe of right now.

Erecting the Spartan Presumption against Family Ties Subsidies

In the last two weeks, Ethan, Jennifer Collins and I have posted our article's introduction and the analytic survey of sites within the criminal justice system where the government extends various privileges, benefits or subsidies to the family. 

Today, we explain the basis for erecting what we call "a Spartan presumption" against such subsidies or benefits to families.  Here's the excerpt.  This part explains the normative costs of such subsidies, which can be summarized briefly. Subsidies to families in the criminal justice system historically facilitate gender hierarchy and domestic violence; undermine the pursuit of accuracy in the effective prosecution of the guilty and the exoneration of the innocent and thus may lead to unwarranted harshness or leniency in the administration of justice; disrupt our liberal political commitments to treat similarly situated persons with equal concern and have a discriminatory effect on those with little or no family; and incentivize more crime and more successful crime. For these reasons, we are generally skeptical of using the criminal justice system to promote family interests absent a compelling reason and no feasible alternative means. 

We invite constructive comments here or by private email.  Many thanks for your continued interest.

Family Ties: More Juicy Stuff.

Forgive my tardiness on following up with more excerpts of our Family Ties piece. You'll recall that we (Ethan, Jennifer Collins and I) posted the introduction and the first few sections of part I last week here and  here.  We now offer the next part of our analytic survey of where the state extends subsidies, privileges and benefits to the family through the criminal justice system here.  This section includes discussion about the use of familial evidentiary privileges, the consideration of family in the context of sentencing practices in the federal and state systems, and the way family ties and responsibilities play a role during the administration of prison time.  There's also a brief "meta-section" discussing the difficulty of isolating what should count as a subsidy or privilege to the family.  We invite constructive comments here or by private email.  Many thanks for your continued interest.

Family Ties: Overview of Intersection between families and criminal justice systems

Following up from yesterday, when Jennifer, Ethan and I posted our introduction to our new paper entitled "Criminal Justice and the Antigone Problem: Should Family Ties Matter?," today we're posting a good chunk of Part I, where we discuss the various intersections between family and criminal justice issues.  It was taking quite a while to copy the Word doc with formatting into the typepad software so I've decided to post today's excerpt here as a Word document.  I've deleted most footnotes.  Constructive comments are welcome on the blog or via private email to us. (Our contact info appears through links on the sidebar.) 

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.

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[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.