PrawfsBlawg

Yes Virginia, there is a trial penalty, and it's four times larger than we thought

Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than "penalizing" those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.

Abrams was wrong, and he’s not the only one.

My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study.84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy "penalty" indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial. 

Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.

Why are my findings so different than everyone else's? Glad you asked.

[More after the fold]

The biggest reason prior federal studies underestimate the trial penalty is that they fail to include the effects of the "acceptance of responsibility" discount. Under the Federal Sentencing Guidelines, defendants who “accept responsibility” by pleading guilty automatically receive a 2-3 point discount to their sentences, but lose this discount if they insist on trial. As such, it operates as a statutory plea discount, or "trial penalty," that sets the baseline for all plea negotiations. Because prior studies do not include the effects of acceptance of responsibility, they heavily underestimate the price defendants actually pay for going to trial. Acceptance of responsibility is written into the guidelines and the USSC's data itself, causing prior studies to miss these effects. Indeed, it is impossible to measure the effects of acceptance of responsibility without reverse engineering the data with several hundreds of lines of code, which I think I am the first to do.

I next explain that rather than measuring the "trial penalty" as that term is understood in crim law debates, Abrams asks whether a rational defendant would be better off going to trial. Defendants are better off going to trial if they face a negative "Abrams Trial Penalty," which Abrams claims to find. Abrams is quite upfront that he is not measuring the traditional trial penalty and, indeed, argues that crim scholars should focus on his new metric. The problem is that crim scholars generally do not discuss this metric because it is usually impossible to measure. A positive Abrams Trial Penalty would indicate that the average plea defendant receives a percentage discount that is larger than their percentage odds of acquittal if they went to trial. Because plea defendants do not go to trial, however, we cannot know what their odds of acquittal would have been without a highly expensive controlled experiment.  (FYI, I'd be open to grants to explore the question!). As I explain, Abrams' innovative methodologies cannot overcome this fundamental problem. By reanalyzing Abrams' findings, however, I show that the normal "trial penalty" in Abram's dataset is likely positive: defendants do pay a price to go to trial.

In addition, Abrams and many prominent scholars report average sentences as the average sentence excluding defendants that receive probation only. Because probation only is the lightest sentence you can receive, however, excluding those cases artificially inflates the average sentence and produces a metric that is quite misleading and largely irrelevant to crim law debates. Nonetheless, many well known sentencing scholars, including some commissioned by the USSC, persist in reporting the "average incarceration sentence" rather than, or in addition to, the actual average sentence defendants receive. As I explain, this peculiar metric appeared in the 1980's due to fundamental misunderstandings about the nature of censored data and selection effects, and confusion about the proper application of the Heckman 2-step correction factor and Tobit regression to control for censoring. (End stat technobabble). This and other common methodological errors are discussed further in my piece. (I put most of the technical stuff in footnotes).

One major limitation of my study is that, like virtually all sentencing studies, it cannot account for the effects of charge bargaining. Because charge bargaining works to increase the trial penalty, however, it does not affect my final conclusion that for the vast majority of federal defendants, trial by jury is not a "choice" or a "right." It is a "mistake."

A Post-Script on Samuel Sheinbein

I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein.  After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction.  Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)

For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned.  Here's a short version of what we argued on the Freakanomics Blog.

The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.  

Bargaining Your Way Out of War Crimes

Writing book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?

Justice Scalia and Empirical Pragmatism

The U.S. Supreme Court has discussed empirical evidence and data in many constitutional rights cases with varying results (think of Brown, Craig v. Boren, McCleskey). The use of such material in constitutional interpretation can be called empirical pragmatism. A very interesting recent case involves Justice Scalia's passionate rejection of this type of evidence.

The case is Brown v. Plata, 131 S.Ct. 1910 (2011), which upheld a broad structural injunction against the California prison system for its failure to solve severe overcrowding, and related medical care problems, for many years. In dissent, Justice Scalia wrote as follows: "...the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course, they were relying largely on their own beliefs about penology and recidivism. And of course different district judges of different policy views would have 'found' that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make 'factual findings' without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate...Yet because they have been branded 'factual findings' entitled to deferential review, the policy preferences of three District Judges now govern the operation of California prison's system." Id. at 1955.

I wonder what folks think about this argument. I find the tone to be unnecessarily dismissive, and also find irony in his ideologically based assertions that such findings are not neutral. What else could the District Judges have relied upon besides experts and data. Moreover "what occurred here" was a Court ruling that may protect the health and safety of vulnerable prisoners.

Emily Sack on Privilege or Punish

The following comments are from Emily Sack, who teaches at Roger Williams:

The authors of Privilege or Punish have made an extremely valuable contribution to the discussion of the family’s treatment in criminal law.  In particular, the framework they have developed for analyzing the value of specific family ties benefits or burdens is very helpful in moving the conversation forward.  However, in my view, the framework, at least for family ties burdens, is not complete and seems to declare off-limits some of the most critical considerations for evaluating the value of a criminal law that involves family status. I want to explore this problem by using the topic of domestic violence’s treatment in the criminal law.

 First, I have to note the short shrift the authors give to domestic violence, by which I mean adult intimate partner violence, as opposed to other types of family violence, such as child abuse.  The authors discuss the topic only briefly in the book’s Coda.    Their general lack of focus on this topic is surprising, given that it may be the quintessential criminal law based on family status.  They attempt to explain their failure to address the issue more comprehensively by arguing that because many current domestic violence statutes include a broader definition of relationship than just those between family members, these laws are not relevant to their concern of family ties and criminal justice.  But this is to define the problem out of existence. While domestic violence of course does include other adult intimate relationships beyond family, a major part of domestic violence occurs in relationships where the perpetrator and victim are spouses.  To pretend otherwise only avoids the real issues in addressing how domestic violence should be treated under the authors’ rubric.

It is helpful to give some brief background on the historical treatment of domestic violence in the criminal law, and outline how it would fare under the Privilege or Punish framework. It is obvious that historically domestic violence enjoyed what might be called the “ultimate” family ties benefit (defined in the book as a state policy that treats defendants better because of their family status).  Under the law of coverture, a husband’s use of physical force to “correct” the behavior of his wife was approved for centuries. Because a wife had no legal identity upon marriage, her husband could be held responsible both criminally and civilly for most of her actions.  As a consequence of his responsibility for her, a husband then was entitled to discipline his wife.  Even after the formal laws of coverture were revoked, domestic violence continued to be condoned by the criminal justice system, and treated as a “family” matter.  Therefore, until the 1980s, there were no specific criminal laws against domestic violence, and facially neutral criminal laws such as assault routinely were not enforced when the victim and perpetrator were married.

Under each of the concerns raised by the family ties benefits test constructed in the book, it is clear that the historical treatment of domestic violence fails miserably, and I think we would all agree that domestic violence offenders’ enjoyment of a family ties benefit cannot be justified.  The authors ask several questions of each family ties benefit examined in the book: Does the benefit perpetuate patriarchy or create gender bias? Does it create inaccuracies in the criminal justice system? Does it create inequality in the criminal law? Does it incentivize crime? For the family ties benefit created by the historical treatment of domestic violence, the answer to all of these questions would be yes. This treatment, which immunized husbands from prosecution, and permitted them to use physical force against victims with impunity, clearly raises all of the concerns that the authors have identified. 

But how would we characterize the current treatment of domestic violence?  Does it continue to be a family ties benefit, or is it a burden (defined by the authors as a state policy which imposed an extra burden on defendants because of their family status)? And if it is a burden, is that burden justified? These are more complicated questions.

As the authors point out, there is vastly different treatment of domestic violence in the criminal law across the states. Some jurisdictions continue to treat domestic violence assaults less seriously than stranger assaults – i.e., as a family ties benefit.  Perhaps the most obvious example of a formal family ties benefit in the domestic violence context is marital rape. In many states, rape by a spouse or intimate partner continues to be a less serious crime, or to require elements of proof that do not exist for stranger rape.  As was true with the historical treatment of domestic violence, there is little justification for awarding a family ties benefit to domestic violence perpetrators under any of the criteria outlined by the authors. 

In some jurisdictions, though formal laws may not provide family ties benefits to domestic violence perpetrators, in reality they receive such benefits from facially neutral laws that are not neutrally enforced.  The authors state that they are not addressing the impact, particularly the gendered impact, of facially neutral crimes in the book.  Fair enough, but in failing to do so, they often omit the central motivation and impact of criminal laws.  For example, there are obviously, facially neutral laws that punish assaults and threats.  But if these laws are not enforced against perpetrators who are spouses or intimate partners of their victims, there is a strong bias effect.  And while females can be perpetrators of intimate partner violence, multiple studies continue to demonstrate that in approximately 85% of domestic violence cases, the perpetrator is male and the victim is female. Therefore, failure to enforce neutral laws is both biased against all intimate partner victims generally, and female victims of crime specifically.

There are also domestic violence laws that may appear to be family ties burdens, but in fact are actually neutral.  Many domestic violence mandatory arrest laws fall into such a category.  Though the law may appear to be singling out domestic violence defendants for special or harsher treatment through mandatory arrest, in reality these laws are intended to rectify past failures, and to disrupt the norm of non-arrest in domestic violence cases.  These mandatory arrest laws therefore attempt to put domestic violence on an even playing field with other types of crime -- to negate the longstanding family ties benefit that domestic violence perpetrators enjoyed.  Criminal law cannot be evaluated without understanding the context of its past, in both formal law and in its enforcement.

And sometimes, domestic violence does appear in the formal law as a family ties burden. The issue then is to evaluate whether such a burden is justified.  I want to explore this by taking one particularly controversial example. Federal law bars weapons possession by anyone convicted of a felony, but there is no analogous provision for those convicted of misdemeanors generally.  However, 18 U.S.C. § 922 (g)(9), which was enacted in 1996 and is commonly known as the Lautenberg Amendment, makes it unlawful to possess a firearm if the individual has been convicted in any court of a “misdemeanor crime of domestic violence.”   This law has been subject to a number of challenges which are not relevant to my discussion here, but it has been upheld as constitutional.  It clearly imposes a burden on domestic violence offenders. The next question is whether or not this family ties burden is justified.

Applying the authors’ test for family ties burdens is helpful in answering this question, but it only gets you so far.  The authors first ask if the relationship involved is voluntary, so that to punish is consistent with liberal views of autonomy. Yes, intimate partner relationships are voluntary in the sense meant by the authors. Is there a liberty interest for the defendant at stake here that society is prepared to recognize? This could be answered either yes or no.  No, because there is no liberty interest we want to recognize in permitting a defendant to possess weapons after committing a crime of violence against a partner. The only liberty interest that can be invoked is the old “family privacy” one – that we should let couples work out their problems without state interference. This historical justification for the tolerance of domestic violence has long ago been jettisoned, at least officially, in our criminal justice policy.  But the authors’ question also could be answered in the affirmative. There is a liberty interest that society is prepared to recognize here – the constitutionally protected right to bear arms.

The authors’ third question also can be answered either yes or no: Does the government have an important objective in creating this law and is the law narrowly tailored to achieving that objective, or are there alternative equally effective methods for doing so?  Yes, the government has the critical goal of deterring and punishing violent crime and of reducing the private and public effects of injury to victims. As with other firearms regulations, this one attempts to reduce the potential harm of a high-risk population. And while there may be other civil means of deterring domestic violence perpetrators and assisting victims, that may be true of any violent crime; only criminal law achieves the retributive effect of punishment. But of course this question could also be answered in the negative. Banning firearms possession does not directly address domestic violence crimes. It is too attenuated and overbroad to be necessary or even effective.  In their final question, the authors ask if the family ties burden contributes to concerns about gender, inequality and discrimination. This too could be answered either yes or no. If the relationship definition is broad enough, this question could be answered no. But it could also be answered yes. Since most domestic violence perpetrators are male, this law disproportionately impacts men.

The point is that the decision as to whether the family ties burden created by this federal law is justified is not clear under the questions posed by the authors.  It must be acknowledged that the authors do note that when one harms a family member, as opposed to a stranger, one may deserve greater punishment because in addition to the basic harm, there is a breach of trust. This may be a justification for treating domestic violence differently than other crimes involving the same level of violence, and weigh on the side of permitting the burden. But the ultimate result remains unclear under the authors’ framework, because there are critical elements missing from their analysis.

What is left out from consideration is the context of this federal gun law, which includes the historical treatment of domestic violence in the criminal law, the current treatment of domestic violence in criminal law generally, the specific charging policies and conviction results for domestic violence crime, and the empirical data regarding guns and domestic violence fatalities. When all of these issues are examined, I think it becomes clear that the family ties burden imposed by the Lautenberg Amendment is justified.

As I’ve already discussed, historically domestic violence was not treated as a crime.  The federal weapons ban for those convicted of domestic violence misdemeanors serves a critical communicative and deterrent function of the criminal law, by focusing on a specific type of crime that for centuries failed to receive state attention. This was in fact one of the primary goals of the Violence Against Women Act and other federal criminal laws concerning domestic violence.  And, if it is true that domestic violence criminal law continues to be under-enforced, then again, isn’t it justifiable to focus on this type of crime to educate the public and to provide greater deterrence?

The specific context of this statute is also important. One of the primary reasons that the law focused on domestic violence misdemeanors was the finding by the Senate that domestic violence crimes were routinely under-charged.  Crimes of violence that would be treated as felonies if the perpetrator and victim were strangers were most frequently handled as misdemeanors – both in charging and plea policies -- if the parties were intimate partners.  Therefore, with only a felony prohibition on weapons, offenders convicted of domestic violence misdemeanors could escape the weapons ban, though they were often guilty of the same level of violence and presented the same level of risk.  Finally, the empirical data demonstrates the close link between fatalities in domestic violence cases and gun possession. One analysis of female domestic homicides demonstrated that the presence of one or more guns in the home made a woman 7.2 times more likely to be the victim of such a homicide. Moreover, women are far more likely to be killed by their spouse, intimate acquaintance or a family member than a stranger.  All of these issues lead to a much stronger case for enacting the gun law which imposes a burden on domestic violence offenders, but all of these considerations are omitted from the book’s framework.

Finally, there is another critical way in which the framework used in the book does not permit a full opportunity to analyze the meaning of domestic violence crime.  Unlike most of the other crimes which create family ties burdens and which are discussed in the book, in domestic violence crime, the relationship between the perpetrator and victim is not just a factor that makes an otherwise non-criminal action criminal. Nor is it simply an “add on” to an already criminal act.  In domestic violence, a central part of the act is not simply the assault or the physical harm caused, but the power and control that the perpetrator exerts over the victim because of the domestic violence relationship. As scholars such as Deborah Tuerkheimer have explained, domestic violence is best understood as a course of conduct and it is the repeated use of psychological and physical force over the history of and intimate relationship that creates the terror, fear and damage done to the victim. In this sense, domestic violence is a different crime, not just the same as a stranger crime with a family ties burden attached.  Therefore, it may be inaccurate to frame the issue as whether it is justified to treat domestic violence crime more seriously is not really accurate, because it is not the same crime as a similar physical act against a stranger.

The authors have begun an important conversation in this book. But no study of criminal justice and family ties can be complete without a fuller exploration of domestic violence and its treatment in criminal law. I think the authors do themselves a disservice not to attempt to deal with this issue, which could only enrich their project. I think that if and when they do so, it will open up a broader and more complex framework for evaluating family ties burdens generally – one which more directly addresses the historical context, the current law enforcement realities, and the multiple functions of the criminal law.   

 

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

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

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

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

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

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

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

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

 

Time delayed sentencing gets off the ground!

Thanks to Tony Sebok, my attention was just adverted to United States v. Bueno, a recent  opinion by Judge Baer (SDNY) involving the sentencing of an irreplaceable caregiver. Bueno has 3 young kids and her husband was also convicted and sentenced, leaving no other available and willing caregivers. As a result, Judge Baer effectively (though unwittingly) implemented the time delayed sentencing idea that Ethan, Jennifer and I proposed in our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The book takes a relatively critical eye toward the idea that caregivers as such should receive sentencing discounts but when there are irreplaceable caregivers who commit crimes that warrant incarceration, that period of incarceration should occur after the caregiving vacuum is filled. In the Bueno case, Judge Baer basically deferred the custody and supervised release of Bueno for 3 years or until an alternative can be found. 

My own sense is that this is both too lenient and too harsh (although not terribly so). I would allow the delay to take place until the caregiving need is filled (ie., until the youngest current child is 18). But I would also place some modest restrictions on the liberty of Bueno during that period of delay so that  Bueno herself and others do not think she is able to enjoy a "windfall" based on the benefit created by the time-delay before sentencing. In other words the defendant would have to endure some extra sanctions to enjoy the benefit afforded by the delay in the sentence. Of course, if the conditions associated with supervised release  could be imposed prior to the incarceration, then the defendant is really only engaged in some time-shifting, and perhaps that's acceptable because the state itself recognizes the social benefit of that shift and that the principal beneficiaries of that are innocent third parties, not the defendant himself or herself.

In any event, this view might be somewhat controversial. Professors Ristroph and Murray seem to think (per their critique in the YLJ) that obligations to care are basically fungible with obligations to serve time. We reject that argument in no uncertain terms in our reply, which you can find here. Are we right?

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?

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.

Our Intro Freaky Post

Over at the NYTimes' Freakonomics Blog, Ethan, Jennifer Collins and I have an introductory post up discussing our new book, Privilege or Punish. A reminder: if you use the Promo Code 27878, you get the book at 20% off.  And if that's still too much for you or your library -- which is understandable since the hardcover is still pricey -- just shoot me an email and I'll happily send you a free PDF of the book so long as you use/read it for personal use only. After the jump, I reprint the first post, which discusses some of the basic themes of the book.

“Family Values” and the Law: A Guest Post

By STEPHEN J. DUBNER

We previously featured some compelling guest posts by the legal scholarEthan Leib on the subject of friendship and the law. Now he is back, along with his two co-authors on a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. This is their first of three posts.

Leib is a scholar-in-residence at Columbia Law School, an an associate professor of law at the University of California-Hastings College of the Law, and in the spring of 2010 will be a visiting associate professor of law at theUniversity of California-Berkeley Law. Dan Markel is D’Alemberte Professor of Law at the Florida State University in Tallahassee. Jennifer Collins is 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.

What a Weird Way to Care About “Family Values”: An Introduction
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Most Americans probably understand that our legal system recognizes the family in many ways. Since most people order themselves in recognizable family units, it isn’t altogether surprising that the law takes notice and uses convenient short-hands. For example, since most people probably want to leave money to their families upon death, why not save them some costs and create a default rule for where people’s money should go when they die without a will? Or consider the rule in many states that married couples share their property equally: it is a convenient short-hand that saves people time and money by selecting the rule most of us would probably select and forcing people who want different rules to make their preferences known.

There are also well-known advocates of “family values” in our culture who think the law ought not only to recognize and notice that we often privately order ourselves in families, but that the law also ought to create incentives for us to so organize. These people think we should have tax breaks for getting married and having kids.

Whatever one thinks about these sorts of laws in general, we took upon ourselves the task of seeing how these sets of commitments lead us into a very bizarre and incoherent set of policies in our criminal justice system. Our book, Privilege or Punish, mines our criminal-law apparatus to see how these efforts to promote family values and use family as a short-hand play themselves out in the high-stakes area of criminal law, where people’s life and liberty (rather than a small tax deduction) are on the line. We were surprised by what we found and ultimately concluded that in most cases, the use of family status within our criminal law was quite ill-conceived.

The criminal law uses family status in a willy-nilly way. Sometimes defendants benefit and sometimes they are burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider a few of the ones we plan on discussing here in the next few posts:

• Nearly 20 states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member;
• Many states permit or require sentencing discounts to offenders who are parents with care-giving obligations;
• Most states impose duties to rescue, supervise, and support children and the breach of those duties renders one eligible for criminal sanction;
• Most states have bigamy, adultery, and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant.

To crudely sum up our various conclusions, we basically claim that the state should exercise substantial caution and indeed hostility to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we conclude that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties, burdens, and benefits are often expressly denigrating the lives of those who don’t live by the rules of a heterosexual and repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation. 

LSA, etc

Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference.  As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels. The first half of those panels was today and the second half is tomorrow (Friday).  On the punishment theory panel today, we had really interesting papers by John Bronsteen (Happiness and Punishment, with co-authors Masur and Buccafusco), Don Braman (Some Realism about Naturalism, with co-authors Dan Kahan and Dave Hoffman; Don's powerpoint presentation was both effective and hilarious--make sure you invite him to your school for this presentation), Mark D. White (In Consideration of Consequentialist Retributivism), and a less interesting and more inchoate set of remarks by me (Bentham on Stilts? On the Bare Relevance of Subjectivity to Retributivism, co-written with Chad Flanders).  It was definitely one of the best panels I've been on in the last four years, with a really good synergy and engagement by the panelists with each other and with an outstanding set of questions from a great audience at LSA. Every aspect of it was better than I could have hoped for, and I'm grateful to the other panelists and the audience for their thoughtful remarks and participation.

Tomorrow morning, bright and early at 815am, my co-author Jennifer Collins and I will be participating in a "Author Meets Readers" roundtables for our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  Tommy Crocker will be chairing the panel, which includes a great group of commentators: Melissa Murray, Don Braman, Naomi Cahn, and last but not least, the incomparable Alice Ristroph. If you're in Denver, we'd love to have you join the conversation. 

Last, if you're in Denver for the few days, make sure you try the great restaurant our panel dined at tonight: Rioja.  The tuna main course and the goat cheese calzone were delish! Thanks to Sam Kamin for the local Denver recon. 

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.