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Privilege or Punish: Criminal Justice and the Challenge of Family Ties

D. Markel, J. Collins and E. Leib, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES, Oxford University Press, 2009

FSU College of Law, Public Law Research Paper No. 473

SMU Dedman School of Law Legal Studies Research Paper No. 220

253 Pages Posted: 15 Sep 2010 Last revised: 29 Jan 2016

Dan Markel

Florida State University College of Law (Deceased)

Jennifer M. Collins

Southern Methodist University - Dedman School of Law

Ethan J. Leib

Fordham University School of Law

Date Written: April 20, 2009

Abstract

This book answers two basic but under-appreciated questions: first, how does the American criminal justice system 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? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, we explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but we argue 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.

This book breaks new ground by offering an important synthetic view of the intersection between crime, punishment, and the family. 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 panoply 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 should be of interest to anyone interested in the improvement of our criminal justice system.

Keywords: Criminal Justice, Family, Punishment, Status, Incest, Adultery, Evidentiary Privileges, Sentencing, Criminal Law, Bigamy, Duty to Rescue

Suggested Citation

Markel, Dan and Collins, Jennifer M. and Leib, Ethan J., Privilege or Punish: Criminal Justice and the Challenge of Family Ties (April 20, 2009). D. Markel, J. Collins and E. Leib, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES, Oxford University Press, 2009; FSU College of Law, Public Law Research Paper No. 473; SMU Dedman School of Law Legal Studies Research Paper No. 220. Available at SSRN: https://ssrn.com/abstract=1677503

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

Jennifer M. Collins

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Ethan J. Leib

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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