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

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, the authors 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 Markel, Collins, and Leib 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. Privilege or Punish 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.

Table of Contents:
Introduction ; Part I: The Challenge of Family Ties Benefits ; Intersections Between Family and the State's Criminal Justice System ; A Framework for Analyzing Family Ties Benefits ; Applying the Spartan Presumption to Family Ties Benefits ; Part II: The Challenge of Family Taxes ; Sites of Familial Taxes ; A Framework For Family Taxes ; Evaluating the Case Against Family Taxes ; Index

About the Author :
Dan Markel is Assistant Professor of Law at Florida State University College of Law and the Founder and Editor in Chief of "prawfs.com." Jennifer Collins is an Associate Professor of Law at Wake Forest University School of Law. Ethan Leib is an Associate Professor of Law at the University of California Hastings College of Law.

Review :
"Markel, Collins, and Leib have achieved a singular feat of scholarly analysis. Not only have they brought into sharp focus a previously unremarked set of inter-related policies affecting the family. They have also irrefutably proven those policies to be in deep conflict with one another and with the most fundamental tenets of our criminal justice system. The book will provoke thought. And it will ultimately impel reform. Wow." --Dan Kahan, Yale Law School "This path-breaking work should be regarded as a major scholarly achievement even by those who disagree with some of the authors' normative conclusions. They have fundamentally re-imagined the domain where family law intersects with criminal law, moving us well beyond the intractable debates over law enforcement responses to domestic violence and identifying many promising new directions for research. Their work here is both innovative and meticulous, and other scholars will doubtlessly mine its insights for many years to come." --Michael O'Hear, Marquette University Law School "Behind America's amazingly punitive penal policies lies a strong cultural fixation with the criminal law as a barrier between stranger danger and the putatively warm and safe world of the family. But as the authors of this strikingly original book reveal, this myth belies a complex web of doctrines that few will recognize from either our treatises or television serials. Viewed together for the first time, these doctrines frequently exhibit a bizarre patchwork of undue leniency, harshness, and discrimination -- a pattern the authors effectively expose as inconsistent with our legal values." --Jonathan Simon, UC Berkeley School of Law, Author of Governing Through Crime (Oxford 2007) "This boldly original book takes on the astonishingly under-examined subject of the explicit and conscious connections drawn between our criminal law institutions and the family. With scrupulousness and balance, Privilege or Punish examines and critiques our laws governing an array of intersections between crime, punishment and the family. The proposals the authors make in response are rigorous, provocative and thoughtful. Privilege or Punish should occupy an enduring place on both the criminal law and family law sides of our legal education and discourse." --Robert Weisberg, Stanford Law School "Markel, Collins & Leib have made an extraordinarily thoughtful and nuanced contribution to criminal and family law." --Roderick M. Hills, Jr., New York University School of Law