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

• Author: Burke, Alafair S.
• Position: Book review

INTRODUCTION I. PAST VERSUS PRESENT II. FORMAL DOCTRINE VERSUS PRAGMATIC EFFECTS CONCLUSION INTRODUCTION

A man's tires are slashed. A woman is slapped. A child is sexually abused.

Because every penal code in the country criminalizes vandalism, (1) assault, (2) and child molestation, (3) criminal law reaches these harms.

But what if the owner of the slashed tires is the suspect's wife, making the damaged tires joint property? What if the slapped woman was struck by her husband and does not want to press charges? And what if the child was molested by his mother and is incapable, either legally or psychologically, of testifying against her?

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, (4) Dan Markel, Jennifer Collins, and Ethan Leib ask whether criminal law should ever recognize family relationships, and, if so, when and how? As a descriptive summary, the book exhaustively documents the diverse ways that criminal law both advantages and burdens actors based on familial status. The criminal law creates "family ties benefits" when it confers testimonial privileges upon spouses, (5) exempts family members from prosecution for harboring fugitives, (6) permits parents to use corporal punishment against their children, (7) mitigates murder to manslaughter when provoked by adultery, (8) shows lenience toward sex offenders who victimize family members, (9) and favors family members in pretrial release, (10) sentencing, (11) and incarceration decisions. (12) Conversely, the criminal law creates "family ties burdens" when it imposes duties to rescue family members, (13) holds parents responsible for their children's crimes, (14) prosecutes incest, bigamy, and adultery, (15) and criminalizes the nonpayment of child and parental support. (16)

As a normative project, the book identifies the potential harms that are unleashed when criminal law recognizes family status: the perpetuation of patriarchal norms, (17) discrimination against nontraditional families, (18) interference with crime control and an efficient criminal justice system, (19) infringement upon recognition-worthy liberties, (20) and the unnecessary levying of criminal sanctions where other measures might suffice. (21) Because of these implications, the authors counsel cautiousness against family ties benefits and burdens. (22) The authors instead favor a facially neutral criminal law-one in which families and family members are advantaged or burdened by generally applicable criminal statutes, without regard to family status. (23)

By describing the ways that criminal law privileges and punishes actors based on family status, and by identifying the potential harms of the resulting benefits and burdens, Privilege or Punish unquestionably makes a significant contribution to a growing literature at the nexus of criminal and family law. This Feature seeks to complement that contribution by situating the authors' observations within the context of two considerations beyond Privilege or Punish's immediate focus of family ties benefits and burdens: chronological trends and the practical realities that can shape application of formal law. First, using the book's thorough cataloguing of criminal law's reactions to family status, this Feature seeks to distinguish between American criminal law's traditions and its more contemporary developments. Because Privilege or Punish is concerned with the criminal law's reliance on formal family status, antiquated and rarely enforced statutes against adultery and the dwindling number of manslaughter statutes that codify spousal infidelity as automatic grounds for provocation are collected alongside more recent inventions such as sex offender registries and the criminalization of the failure to pay child support. (24) Similarly, the book rightly condemns the criminal justice system's traditionally light hand toward violence in the family, but the contemporary burgeoning of law enforcement directed against domestic violence is largely beyond its scope. (25) By comparing the old against the new, this Feature credits an important shift in criminal law's treatment of families-from previously viewing families as private as long as they conformed to prevailing notions of family, to now enforcing its proscriptions even when it must adjust to do so within the home.

This Feature also explores a second important development in the criminal law's treatment of families: the recognition of the interplay between criminal law and procedure. Recent criminal law scholarship teaches us that real-world processes shape the practical effects of formal doctrine. (26) However, because it is concerned with distinctions based on formal family status, Privilege or Punish largely adheres to the four corners of formal statutory law, forestalling any discussion of what it deems to be the law "on the streets." (27) Perhaps because of that self-imposed limitation, the authors do not explore one reason why criminal law must sometimes adjust to families--not to privilege or punish family for family's sake, but instead to reach a domestic sphere that the law traditionally treated as private and impenetrable.

This Feature recasts Privilege or Punish's thorough cataloguing of the many collisions between formal criminal law and families through the lenses of time and procedural realities. Looking at changes to the criminal law's approach to families over time, Part I traces an evolution in criminal law's treatment of family boundaries and intrafamily privacy. Because criminal law was traditionally reluctant to intervene within families out of concern for intrafamily privacy, traditional criminal law also promoted and regulated the boundaries that divided properly constituted (and presumptively private) families from other relationships that could be policed. (28) Over time, however, the lines that separate formal families from other relationships have lost their traditional importance as criminal law has become more willing to enforce its proscriptions within families, despite traditional concerns about privacy. Many of the family ties benefits and burdens documented in Privilege or Punish were intended to regulate family boundaries and protect intrafamily privacy. As criminal law has learned to cross family boundaries, the benefits and burdens that served to regulate and protect those boundaries have begun to fall from favor.

Turning to the real-world implications of applying criminal law to families, Part II draws in part on my experience prosecuting cases involving families (29) and argues that criminal law has learned not only to reach within families, but also to react to the realities within them. The application of formal criminal law to families is often complicated by the past, present, and future relationships between affected family members. Because of the procedural difficulties of applying formal law to families, the criminal justice system must sometimes yield to such relationships, not for the purpose of facilitating or preserving families per se, but to achieve the criminal law's usual objectives of retribution and deterrence within them.

1. PAST VERSUS PRESENT

   Privilege or Punish assumes that when criminal law yields to family status, it usually does so not to serve its accepted functions of retribution and deterrence, but instead with the separate purpose of facilitating certain family structures. For example, the authors conclude that "the criminal justice system, with a few exceptions, is not generally an appropriate place to foster a particular vision of family life." (30) Similarly, they summarize their wariness of the role that family status plays in criminal law by stating that the criminal justice system "should only rarely and cautiously serve as a vehicle for directly promoting the institution and goods of family life." (31) This assumption affects both the book's descriptive and its prescriptive content, as the authors depict a criminal law landscape crowded with family ties benefits and burdens and then conclude that most of them serve no legitimate retributive or utilitarian purpose.

   The authors' depiction of criminal law's objectives regarding families is especially reflective of criminal law's traditional proscriptions. The feminist critique of criminal law (as with other areas of the law) is that it historically treated families, marriages, and domestic life as "private," insulated from state interference. (32) As Privilege or Punish correctly notes, criminal law shielded the privacy of families by, for example, conferring testimonial privileges between spouses (33) and, more troublingly, enabling violence toward wives and children, both through formal law and institutionalized acquiescence. (34)

   In light of criminal law's historical prioritization of intrafamily privacy, it is perhaps unsurprising that criminal law traditionally regulated the boundaries that determined family forms and thereby separated private sanctuaries (35) from public concern. Although criminal law was reluctant to intervene in the private affairs of properly constituted marriages, it did not hesitate to punish those who violated or challenged the normative ideals of family composition. From this perspective, as Melissa Murray has noted, prohibitions against incest, adultery, sodomy, prostitution, and birth control can all be seen as criminal law's regulation of marriage as a heterosexual and procreative institution. (36) So too could we cast the common law's provocation doctrine, which mitigated murder to manslaughter when directed against adulterous wives or interposing paramours. (37) In Privilege or Punish terms, criminal law's family ties benefits and burdens worked hand in hand to define, protect, reinforce, and police the contours of properly constituted families and the lines of intimacy that distinguished between the public and the private.

   But contemporary reforms challenge the traditional narrative about...