Rethinking criminal law and family status.

• Author: Markel, Dan

FEATURE CONTENTS INTRODUCTION I. OUR LATENT TOTALITARIANISM? A. On "Statism" and Family Ties Benefits 1. Situating Our Project 2. Revisiting (Some) Family Ties Benefits B. On Voluntarism and Family Ties Burdens 1. Our Kind of Voluntarism 2. Misrepresenting Voluntarism: Neither Contractarian nor Family Blind 3. A Closer Look at Omissions Liability and Antitotalitarianism II. DISESTABLISHMENT AND ITS DISCONTENTS A. Operationalizing Disestablishment B. Is Liberal Democratic Authority Different? C. Religious Organizations Versus Families III. ON PAST VERSUS PRESENT; POLICY VERSUS PRACTICE A. The Relevance of Trends B. What Policy Owes to Practice CONCLUSION INTRODUCTION

On Christmas Day 2009, a radicalized young Muslim from Nigeria attempted to blow up an American jetliner full of innocent passengers. Disaster, as we know, was averted. What we learned in the following days was that the father of Abdul Farouk Abdulmutallab had previously warned the American embassy officials in Nigeria of the dangers his quiet, unassuming, and educated son presented to public safety. (1) While no parents wish to find themselves in the position to issue such warnings, there seems little question that the father here did the right thing. Indeed, we consider his act a credit to the character of a father who would prioritize the well-being of innocent persons over family loyalty. While few cases involve this degree of tension between family loyalty and public safety, the Christmas Day attack recalls a classic criminal justice dilemma between allowing family loyalty to flourish on the one hand, and enabling the state to pursue other critically important goals, including the protection of innocent persons, on the other.

This Antigone-like tension served as the early motivation for the research behind our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Privilege or Punish). (2) As we considered the intricacies of the relationship between familial love and criminal justice, we realized that the tensions in the Abdulmutallab family--like the tensions in the Kaczynski or Madoff families before them (3)--are related to a larger set of questions. These are the questions that ultimately guide the focus of our book: namely, how does and how should family status matter in a criminal justice system situated in a liberal democracy?

Thus, in Privilege or Punish, we set out both to catalog and critique the various ways a person's family status triggers either benefits or burdens to that person in the criminal justice system. The family ties benefits we scrutinize include prosecutorial exemptions for family members who harbor fugitive relatives and evidentiary privileges that family members can invoke at a criminal trial. (4) The family ties burdens we analyze include laws imposing liability for failing to protect a relative from harm (omissions liability), parental responsibility laws (i.e., those imposing liability for failure to supervise minor children), and certain "morals" laws such as bigamy, incest, and adultery. (5)

What unifies the spectrum of legal rules we investigate is that each involves the facial treatment of family status in the criminal law rather than disparate impact on family members. Thus, we did not set out to survey the ways families are helped or hurt by the discretionary practices of actors within the criminal justice system or by facially neutral rules that nonetheless have a substantial impact on family life. These effects have been the subject of much important scholarship about the disparate impact of the criminal law and sentencing practices on families. (6)

Rather, we deliberately chose to focus on the facial treatment of an offender's family status for two important and related reasons. First, although scholars have looked at many of these benefits or burdens in isolation, there has been curiously little effort to analyze the full panoply of these laws systematically or to consider how they interact with each other and with the aspirations of a criminal justice system within a liberal democracy. (7) Our explicit goal was to analyze all these benefits and burdens imposed by dint of family status and to help judges, policymakers, and academics reflect upon these policies, the messages they are sending, and their potential for benign or invidious discrimination based on a particularly idealized and narrow conception of family. For example, when legislators create an exemption from prosecution for a man who hides his murderous spouse from the authorities, but not for a man who hides his longtime gay lover (whom he cannot, in most states, marry), they are signaling what kind of relationships matter in the eyes of the criminal justice system and subjecting certain classes of citizens to differential treatment.

Second, if it is appropriate to critique policy choices that result in unintended third party harms to family life, it is surely appropriate to do so where those choices are explicit and purposeful. For example, we think it fair to presume that most policymakers do not set out to destroy relationships between parents and children when they impose draconian sentences for minor drug offenses, thereby eliminating any meaningful opportunity for these offenders to parent their children. But they do intend to impose a particular conception of family when they extend evidentiary privileges to individuals in one type of romantic relationship and not another. In other words, policymakers should be held accountable for both their direct policy choices and the indirect effects of their policies.

As our book develops in greater detail, family ties benefits and burdens require close scrutiny because of the various ways they might unwittingly or overtly entrench patriarchy and gender domination; (8) create risk of more crime; (9) promote inaccuracy in criminal justice outcomes; (10) encroach upon fundamental associational liberties; (11) and treat people differently based on factors that are arbitrary or irrelevant to the commission of the offense, such as whether the offender's romantic or caregiving relationship is formally recognized by the civil apparatus of the state. (12) Although these concerns might seem reasonable in the abstract, there is little question that the normative vein of our project is more controversial than its descriptive ambitions.

The fact that our normative claims have proven more contentious than our descriptive ones is unsurprising. Of the thirteen benefits and burdens we discuss in Privilege or Punish, few are present in every state and municipalityindeed, even incest laws vary across jurisdictions with respect to their scope. (13) We neither ignore nor obscure this variety of approaches among familial benefits and burdens, and we acknowledge that divergent practices often signal reasonable disagreement about the plausible justifications for these rules. So we are not disappointed or even puzzled that the book's critics raise various challenges to our argument, and we welcome the chance to have a conversation about how better to think about the role of family status in the criminal law.

In what follows, we address the challenges brought by Professors Ristroph, Murray, and Burke, our critics in this Feature of The Yale Law Journal. (14) Part I responds to the concerns raised by Professors Ristroph and Murray in their rich and provocative essay. Subsection I.A.1. begins by providing background about our book in order to demonstrate the ways Professors Ristroph and Murray mistake our project as a brief for a form of authoritarianism. As we elaborate, the gist of our normative framework is to encourage policymakers to view family status in the criminal law as a suspect category. Accordingly, we argue that such laws should be subject to an "equal protection" framework of heightened scrutiny based on their potential to disrupt egalitarian norms, unduly burden associational liberties, promote patriarchy, provide incentives to commit crime, and inhibit the fair and accurate punishment of the guilty. Thus, when Professors Ristroph and Murray claim that our book's argument is "deeply statist, and ... offers proponents of limited government little but alarm," (15) they reveal a thorough misunderstanding of both our positions and their implications.

Once the alarmist tone is removed and one earnestly begins investigating the "statist" critique, one finds that our differences with Professors Ristroph and Murray in the family ties benefits context boil down to a few policies: 1) family status-based exemptions from prosecution for harboring fugitives; and 2) family status-based evidentiary privileges. (16) These examples are important because the basic Ristroph-Murray critique rests on the claim that family ties benefits are critical for an "antitotalitarian" culture to flourish. But Professors Ristroph and Murray offer no evidence to support the empirical claim that the family ties benefits cause or correlate with the antitotalitarian culture they wish to nurture. Indeed, few jurisdictions offer the extensive protection for families that Professors Ristroph and Murray think necessary to protect liberal democracies from totalitarianism. So, if our support for certain restrictions on family ties benefits makes us deeply statist or authoritarians, (17) then we are far from alone in the danger we pose to the republic. Moreover, it seems to us that in their concern for individual freedom and limited government, Professors Ristroph and Murray fail to value the public's interests in retribution or crime control. Our book treats the public's interests in those projects as not only relevant but vital to promoting the very freedom and limited government they seek to defend.

While Section I.A. focuses on our differences with respect to family ties benefits, Section I.B. explores our differences in the context of family ties burdens. Here, Professors Ristroph and Murray...