Legal Commentary

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

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

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

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

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

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

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

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

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

Part III rethinks the family ties burdens we identify in Part I, in light of the normative framework in Part II. We hope to show how many of the criminal justice system?s family ties burdens can be preserved in some form, so long as they are reconstructed to avoid the substantial costs of using family status alone to distribute burdens. In some cases, this won?t be possible, and we explain why and what to do about it.

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

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

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