Punishing Family Status

Abstract

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support.

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

Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary caregiving relationships.

This article is the subject of a mini-symposium in the December 2008 issue of the Boston University Law Review. Professors Rick Hills (NYU) and Michael O'Hear (Marquette) will publish responses and we will offer a brief reply.

A draft of Professor O'Hear's response is available here: http://ssrn.com/abstract=1260891

A draft of our reply is available here: http://ssrn.com/abstract=1261563

Keywords: criminal law, family law, criminal justice, criminal procedure, legal theory