We previously featured some compelling guest posts by the legal scholar Ethan 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 the University 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.
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In the case of undocumented workers, one of the most shocking laws affecting them. Many of them ignore that if they’re deported, they can also loose their children. Many times small children that would be put in adoption or with foster families. Some of them might be born in the U.S. so they’re U.S. citizens (according to the Constitution), so they can’t be deported with their parents. Imagine the suffering of some parents loosing their children forever, while trying to find a better future for them. This is another policy, not that family friendly. Parents should have access to know at least where are they and being able to take them back home.
A question and a comment.
Q. Do you oppose laws that exempt spouses from having to testify against one another in a court of law? I suppose the answer is yes.
And a comment. Some of the posts above dealing with child support remind me of this story. I saw Gloria Allred on an afternoon talk show many years ago (Donahue, perhaps?) debating with a somewhat eccentric gentleman (he wore a skirt) from the National Organization of Men. His argument, which got Ms Allred quite flustered, was that since women who don’t want children can have an abortion, a man who impregnates a woman should be able to waive all rights and responsibilities to/for the child by signing a document to that effect within, say, 60 days of the conception. I found the logic impeccable, even though on moral grounds I am opposed to the conclusion. (As a pro-lifer I don’t believe men or women should be able to abdicate responsibility for a life they have created.)
Hi PaulD,
We do largely come down against the evidentiary privileges.
As to the relinquishment of parental responsibility, we have some discussion of that in the book also. Did you know that under the law parents can pretty readily terminate their parental responsibilities notwithstanding pretty strong moral norms against doing so?
In any event, Ethan and I think there are certain circumstances where a man should not be held responsible for supporting a resulting child if there was some deception involved. Jennifer, if I recall, takes a slightly harder “strict liability” line.
Ethan has also written a pretty interesting oped on a “man’s right to choose.” You can find it here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700241
PaulD: As a pro-choicer, I also have some sympathy with the view that men should have more of an opt-out (a financial abortion, if you will), once we concede that the right to choose an abortion is the woman’s right. But we have to tread carefully here: if the man willingly took the risk of fathering a child by having unprotected sex, it is a little harder to justify making the child pay the cost (for the burden of a one-income household falls not only on the mother but the child as well), For my thinking, you can see my op-ed on the subject here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700241.
Ethan, regarding your statement
“But we have to tread carefully here: if the man willingly took the risk of fathering a child by having unprotected sex, it is a little harder to justify making the child pay the cost (for the burden of a one-income household falls not only on the mother but the child as well)”
you raise an issue of asymmetry in the mother/father equation that I had not thought of.
But playing devil’s advocate, if a woman has the legal right to kill a child the father wants to live, is it so burdensome to say that the mother, for her part, may need to put the child up for adoption to ensure a better future than can be expected from a one-income household?
So you are advocating eliminating all laws against domestic violence, both criminal and civil?
That is going to win you a lot of friends.
This is silly. Marriage and parenthood give rights are responsibilities. You’re complaining that marriage is politically corrupting and archaic because it’s not a Get-out-of-jail-free card.
I think that some of the “harboring a relative” rules are based on simple practicalities.
Think of this scenario: “Dad” breaks out of jail and goes — well, home. He owns the house, and when he’s not locked up for petty crimes, he lives there.
Other people live there, too. They don’t have anywhere else to go. And they’re a bit afraid of him, so they don’t exactly want to have him know that they’ve called the police.
Should you punish them for living in their own homes, just because a criminal also lives there and chose to show up at an inopportune time? Aren’t the people in this example better described as innocent bystanders rather than people that actively set out to hide a fugitive from justice?