Criminal Justice and the Challenge of Family Ties

82 Pages Posted: 29 Sep 2006  

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

Abstract

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, if possible, with a focus instead on functions served by established relationships of care-giving responsibility.

Keywords: crime, criminal law, family, criminal justice, criminal procedure

Suggested Citation

Markel, Dan and Collins, Jennifer M. and Leib, Ethan J., Criminal Justice and the Challenge of Family Ties. University of Illinois Law Review, August 2007; Florida State University College of Law, Public Law Research Paper No. 221; Wake Forest University Legal Studies Paper No. 933427. Available at SSRN: https://ssrn.com/abstract=933427

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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