Criminal Justice and the Challenge of Family Ties

Authors

Dan Markel, Florida State University College of Law
Jennifer M. Collins, Southern Methodist University, Dedman School of LawFollow
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.

Publication Title

University of Illinois Law Review

Document Type

Article

Keywords

crime, criminal law, family, criminal justice, criminal procedure

Recommended Citation

Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. ILL. L. REV. 1147, 1228 (2007)