Criminal Law as Family Law

Abstract

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life. This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families. Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice. This Article explores the gap in literature in two respects. First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families. Second, the Article examines the depth of criminal justice interference in family life and autonomy through analysis of the impact of community supervision on families. These explorations reveal that community supervision, and criminal justice more broadly, operate as a de facto family law regime, negatively restructuring Black family autonomy, stability and loyalty, all of which family law seeks to promote. The Article recommends that the practice of community supervision return to its roots in human services and calls on legal scholars to focus critical attention on criminal law’s creation of disparate and unequal family law systems.

Keywords: Family Law, Criminal Law, Child Welfare, Criminal Justice, Race, Community Supervision, Racial Justice, Black Families

JEL Classification: K14; K36