Bright Ideas: Dan Markel, Jennifer M. Collins and Ethan J. Leib on Privilege or Punish: Criminal Justice and the Challenge of Family Ties

privilege-or-punishToday’s Bright Idea comes from Dan Markel, Jennifer M. Collins, and Ethan J. Leib. Dan is the D’Alemberte Professor of Law at Florida State University College of Law and of course blogs at Prawfs. Jennifer is an associate professor of law at Wake Forest University School of Law. Ethan is an associate professor of law at U.C. Hastings College of Law. All three have impressive track records as scholars with articles appearing in the Yale Law Journal, Northwestern University Law Review, Iowa Law Review, Emory Law Journal, and many other excellent publications among them. With such an impressive group behind Privilege or Punish: Criminal Justice and the Challenge of Family Ties, I am quite pleased to present Dan Markel, Jennifer M. Collins, and Ethan J. Leib as they share the shape of their ambitious book. In addition, the essay explains how the project began and evolved. Both parts offer insights well worth the read.

DAN MARKEL, JENNIFER M. COLLINS, and ETHAN J. LIEB

First, we want to thank Deven and the Co-Op crew for the chance to share some thoughts about our book and the story behind its writing. Privilege or Punish: Criminal Justice and the Challenge of Family Ties is a book that tries to answer two basic but under-appreciated questions. First, how does the American criminal justice system (writ large) address a defendant’s family status? And, second, how should a defendant’s family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination?

The Shape of the Book

The descriptive part of the project originally began as a chance to ruminate upon contemporary “Antigone” situations where one’s loyalties to the state stand in tension with one’s loyalties to family members. Think of David Kaczynski, the Unabomber’s brother, or Bernie Madoff’s sons—they all called in the authorities to arrest their family member. But we soon realized the Antigone problem was only one of many sites where the state’s criminal apparatus and family intersected.

Consequently, we sought to survey the various spaces within the criminal justice system in which defendants are either benefited or burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider just a few: most states give spouses a right to refuse to testify against their spouse in a criminal proceeding and some even permit a spouse to block the testimony of a spouse who is willing to testify; almost twenty 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 and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant. These are just some of the various “family ties benefits” and “family ties burdens” in our criminal justice system.

Naturally, we weren’t satisfied with merely cataloguing these benefits and burdens. We also wondered how policymakers and courts *should* view these laws. And so we established a framework of analysis for these benefits and burdens, one that was inspired by, but not identical to, the framework used to scrutinize suspect classifications in constitutional law. To sum up our various conclusions crudely, we basically claim that the state should exercise substantial caution and indeed skepticism to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we concluded 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 expressively denigrating the lives of those who don’t live by the rules of a heterosexist and often 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.

By offering both our descriptive and normative claims, we hope to be doing something different and important. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the variety of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one’s family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that we hope will be of interest to anyone seeking the improvement of our criminal justice system.

Below the fold, we talk a little about how the evolution of our book from idea to reality.

The Path of the Book

The arrival of our book followed a path of twists and turns. Initially, the project began as a casual conversation between two of us about a future collaboration about “Antigone” conflicts between family loyalty and obligations to the state. But that idea languished on the back-burner for a while until, in late 2005, a third author joined the conversation and provided the enthusiasm to move us from abstract conversation to action. After some discussions, we hatched a plan to study and critique the range of intersections between family and criminal justice.

In retrospect, and quite oddly, we primarily saw only the areas where the criminal justice system extends benefits on account of family status or family ties. So we made an early division of labor for that descriptive research, and expressed the intention to revise and edit each other’s work, both on the descriptive and normative sides. That first project included matters such as parental discipline defenses, evidentiary privileges, pretrial release, sentencing discounts, and prison accommodations.

But as we were finishing up that project, we quickly realized there was a flip side to the area we were looking at: namely, the family ties burdens, that is, those burdens defendants face on account of family status in the criminal justice system. (These burdens include duties to rescue, support, and supervise, as well as bigamy, adultery, and incest.) At that point, we realized we had a spin-off project to be written, and the idea of doing this is as a book was born quite naturally.

In late 2007, we put together the proposal for the book as a whole, and circulated it to a few publishers; at that point, we weren’t sure whether to go ahead and write the second part of the project as an article also, or to hold off and save it for the book. When we heard good news from the inimitable Chris Collins of Oxford University Press, we proceeded on both fronts—article and book. [This two-front strategy initially surprised us but it did make sense: the publishers get to enjoy the benefits of having student editors work diligently on the piece, saving them editing costs and also helping publish a more polished product as a book.] We were grateful also that the law review in which we published the second half of the project also offered us the chance to have some critics write responses in a mini-symposium on the piece, now known as Punishing Family Status. Professors Rick Hills and Michael O’Hear both wrote penetrating and provocative essays in response to this second article of ours, and we tried to muster some response both in the Boston University Law Review and in the final version of the book.

Looking back, it’s pretty clear that this was an unusual collaboration. There are three authors, but in this case there was no obvious way for us to divvy up the work. Although all three authors had written on criminal law before, we had varying levels of expertise in the literatures of criminal law, political theory, and family studies. That two of the authors had never met in person until the book was two-thirds written made it all the more challenging. But at least from the authors’ perspective, the effort was worth it. Thousands of e-mails, hundreds of drafts, tens of conference calls, and only a single in-person breakfast all together at AALS in January 2008!

Not that there weren’t issues that we disagreed on: especially in the second half of the project, we had issues to work out about the regulation of incest and sex with minors that are not easy to get three opinionated people to agree about. And thus, the book does reveal some seams that we used to patch together our disagreement — sometimes we just had to say that we were not unanimous on the resolution of a very few issues, which we knew wasn’t an orthodox way to handle it. Nonetheless, it was a workable solution that we think gives a feel for the range of disagreement that is permissible even within the theses of the book.

All that said, we hope people enjoy reading it at least as much as we enjoyed planning, researching, and writing it together. As we mentioned elsewhere, we are very keen to disseminate the ideas and policy proposals of the book, so if you have any trouble getting access to the book, please just contact Dan Markel (markel at post.harvard.edu), and he’ll be happy to send you a PDF of the book for free.

And if you’re interested in considering reviewing the book, you should also contact him or the OUP Publicity person, Ninell Silberberg (Ninell.Silberberg@oup.com), and we’ll send you a review copy of the book as soon as possible. In the meantime, if you want to learn more about the book’s contents or see some testimonials about the book, you can do so by clicking here.

Dan Markel is D’Alemberte Professor of Law at Florida State University.
Jennifer M. Collins is, effective July 1, Professor of Law at Wake Forest University
Ethan J. Leib is Associate Professor of Law at UC-Hastings College of Law.

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