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

• Author: Bradley, Gerard V.
• Position: Book review

PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES. DAN MARKEL, JENNIFER M. COLLINS & ETHAN J. LEIB. OXFORD UNIVERSITY PRESS, 2009.

INTRODUCTION

The authors of Privilege or Punish (PoP) pose two questions, one descriptive and the other morally evaluative. "First, how does the criminal justice system in this country approach the issue of family status? Second, how should family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of nondiscrimination?" (1)

PoP divides the realm of "family status" into the "benefits" and "burdens" of "family ties." (2) The former include evidentiary privileges and domestic violence statutes, and some concessions predicated upon family status in pretrial release, sentencing, and prison administration. The latter are entirely substantive crimes. These "burdens" include sexual acts long understood to be subversive of the family (bigamy, incest, and adultery), and familial duties unrelated to sexual morality, such as supporting indigent parents and dependent children. (3) Another "burden" is the legal obligation to rescue family members from danger. (4)

The descriptive side of PoP is not quantitative. The authors expressly decline one pertinent data collection project: measuring the "indirect" cultural and economic effects upon families of criminal justice practices that do not explicitly depend upon family status, such as sentences of extended incarceration. (5) They consider instead what they term "distinctively purposeful practices," (6) "explicit legislative or judicial choices," and "laws expressly drawn to privilege or disadvantage persons based on family status alone." (7)

The authors purport to focus upon "facial benefits and burdens," (8) yet they do not attempt to measure these elements. They do not investigate, for example, how many prosecutions there are annually for adultery. They do not measure the practical effects of "explicit" family benefits like the marital evidentiary privilege. (9) But the value of PoP does not ultimately depend upon the criteria of success appropriate to social science.

Nor does PoP rise or fall as conventional legal analysis. Its subject matter is a handful of family-sensitive statutes. The authors' selection is unexceptional. There is no significant case-crunching in the book and almost no legal history.

The authors describe their work as "synthetic." (10) They see it as an effort to construct an analytical "framework" for critical evaluation, so that "policymakers" might better reflect upon their choices, which "have been insufficiently analyzed in a synthetic manner by academics before this project." (11) PoP is relentlessly philosophical. It is mainly a work of moral philosophical evaluation, a sustained normative critique of "family ties" in criminal justice.

PoP's moral evaluations are bold. The authors judge that all the "family ties benefits" they examine should be modified or abolished. Some "can remain viable in a liberal criminal justice system so long as these benefits are extended more broadly on the basis of relationships of caregiving, rather than arbitrary familial status." (12) On the "burdens" side, the authors would decriminalize the sex crimes (though they remain "divided" on certain "sub-issues" involving incest). (13) They oppose most of the other family ties burdens they examine. (14) They also oppose the family itself, because it is "gendered, and otherwise unjustifiable." (15) The family is, morally speaking, very bad news.

PoP's success plainly depends, then, upon the soundness of the normative criteria that undergird its sharp judgments. Much of this Review accordingly focuses upon their normative apparatus. I argue that this apparatus is, for the most part, question-begging, vague, or simply mistaken.

But here is an important caveat: identifying the authors' normative criteria is both easy and hard. It is easy insofar as the authors' expressions of moral evaluative terms are frequent and easily located on the page. The authors could scarcely be more explicit, for example, about the "four normative cost[s]" of family ties benefits in the criminal justice system. (16) But identifying the authors' normative criteria is hard insofar as what the authors mean by many of these expressions is elusive, vague, and seemingly cliched. Harder still is figuring out the relationship among the authors' ensemble of interdependent and mutually supporting moral norms.

The problem is apparent from the quotations in the first paragraph of this Review. The authors ask: "[H]ow should family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of nondiscrimination?" (17) The added emphasis here indicates several conceptually dense threads of moral justification tethered together. In the one sentence we have: first, the moral norms endemic to the criminal justice system itself; second, the moral norms associated with a certain political form ("democracy"), overlaid with those involved with a particular political morality ("liberal[ism]"); and third, additional free-standing norms of justice, namely, equality and nondiscrimination. The authors rely very heavily, too, upon another free-standing moral norm, one not plainly visible in the quoted sentence, namely, "autonomous" individual choice of affectionate relations.

The opening parts of this Review make the most coherent sense possible of the authors' complex normative system. I have sorted out the norms and evaluated them independently. I have also tried to explain how and where the authors' various fusions of norms work and where they do not.

Part I disposes of two rhetorical strategies in PoP that can be isolated from the authors' wider justificatory framework. These strategies are meant to bear the burden of argument. But neither is an argument. The first is the authors' repeated attempts to buttress their moral critique of the family by appeal to the readers' biases, not to their critical judgment. The second is the authors' futile attempt to occupy the commanding heights of moral "neutral[ity]." (18)

Part II affirms the authors' view that liberty and equality are the moral pillars of the criminal justice system. The authors mistakenly conclude, however, that these foundations support a presumption against family predicates in that system. Their mistake is to overstate the role of coherence in reasoning about legal practices. This Part also argues, dialectically, that granting the authors' presumption against family "status" would undermine countless other (that is, non-familial) criminal justice "status" predicates that no one seriously questions.

Part III is the first installment of my critique of the authors' package of four "normative" criteria. These criteria include two "costs" specific to criminal justice. These costs are, first, whether family ties "undermine the pursuit of accuracy in the effective prosecution of the guilty and the exoneration of the innocent (thus, possibly leading to unwarranted harshness or leniency in the administration of justice)," and second, whether family ties "tend to incentivize more crime and more successful crime." (19) No one disputes the legitimacy of the latter of these criteria, which does not pull justificatory weight in PoP anyway. It is a redundant makeweight. The former is two-sided: "accurate" conviction of the guilty and "accurate" exoneration of the innocent. But this axiom about "accurate" convictions is seriously mistaken. It ignores the complex relationship between the moral norm of just deserts and the overall common good of political society, a relationship at the heart of any sound understanding of criminal justice.

Part IV takes my investigation deeper into the authors' evaluative matrix. Here I try to describe and evaluate the distinctive contribution of political theory to the authors' overall argument--basically what they seek to accomplish by their frequent adjectival use of "liberal" (as in "liberal democracy" and a "liberal state"). (20) My judgment is that these "liberal" usages are unsuccessful. They are vague, redundant, question-begging, or mistaken. This part also suggests that the authors assign greater moral value to individual "autonomous" choice in the family context than their evidence and arguments warrant.

Part V is the second installment of my "package" critique. The remaining two "normative costs" are exogenous to criminal justice and support the authors' rejection of the family on broad--that is, not specific to criminal justice--moral grounds. The argument is that, first, family status has "historically facilitate[d] gender hierarchy" and, second, that family status "disrupt[s] our egalitarian political commitments to treat similarly situated persons with equal concern and discriminate[s] against those without families recognized by the state." (21) The family is, according to PoP, inegalitarian, sexist, and insufficiently inclusive of other personal ties that the authors consider to be "family." The authors do not so much establish as assume the validity of these norms. They are apparently ignorant of the radical mutuality and equality upon which the family is, in truth, founded, and they do not take full account of how their radical interjection of strong autonomy values into family life would affect personal well being and, even, autonomy. Finally, Part VI sketches how we could better analyze family status in the criminal justice system.

1. THE INADEQUACIES OF RHETORIC

   In PoP the authors seek rhetorical advantages without argument in two different ways. One is their appeal to the readers' biases, rather than to their reason, for affirmation of important claims. The authors assert that family ties benefits and burdens are suspect because the "traditional state-sanctioned" family is oppressive. (22) These...