"Family Values" and the Law: A Guest Post

We previously featured some compelling guest posts by the legal scholar Ethan Leib on the subject of friendship and the law. Now he is back, along with his two co-authors on a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. This is their first of three posts.

Leib is a scholar-in-residence at Columbia Law School, an an associate professor of law at the University of California-Hastings College of the Law, and in the spring of 2010 will be a visiting associate professor of law at the University of California-Berkeley Law. Dan Markel is D’Alemberte Professor of Law at the Florida State University in Tallahassee. Jennifer Collins is a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

What a Weird Way to Care About “Family Values”: An Introduction
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Most Americans probably understand that our legal system recognizes the family in many ways. Since most people order themselves in recognizable family units, it isn’t altogether surprising that the law takes notice and uses convenient short-hands. For example, since most people probably want to leave money to their families upon death, why not save them some costs and create a default rule for where people’s money should go when they die without a will? Or consider the rule in many states that married couples share their property equally: it is a convenient short-hand that saves people time and money by selecting the rule most of us would probably select and forcing people who want different rules to make their preferences known.

There are also well-known advocates of “family values” in our culture who think the law ought not only to recognize and notice that we often privately order ourselves in families, but that the law also ought to create incentives for us to so organize. These people think we should have tax breaks for getting married and having kids.

Whatever one thinks about these sorts of laws in general, we took upon ourselves the task of seeing how these sets of commitments lead us into a very bizarre and incoherent set of policies in our criminal justice system. Our book, Privilege or Punish, mines our criminal-law apparatus to see how these efforts to promote family values and use family as a short-hand play themselves out in the high-stakes area of criminal law, where people’s life and liberty (rather than a small tax deduction) are on the line. We were surprised by what we found and ultimately concluded that in most cases, the use of family status within our criminal law was quite ill-conceived.

The criminal law uses family status in a willy-nilly way. Sometimes defendants benefit and sometimes they are burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider a few of the ones we plan on discussing here in the next few posts:

  • Nearly 20 states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member;
  • Many states permit or require sentencing discounts to offenders who are parents with care-giving obligations;
  • Most states impose duties to rescue, supervise, and support children and the breach of those duties renders one eligible for criminal sanction;
  • Most states have bigamy, adultery, and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant.

To crudely sum up our various conclusions, we basically claim that the state should exercise substantial caution and indeed hostility to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we conclude 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.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties, burdens, and benefits are often expressly denigrating the lives of those who don’t live by the rules of a heterosexual and repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.


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  1. charles says:

    I’m not sure that there’s anything new here. The justice system is built like the tax code, slowly, over time and patched together based on advocated ideas created as responses to pin-point events. Shocking that one would find the result incoherent.

    Although more shocking might be that I didn’t find anything so shocking about what called out above. So what? The examples actually seem somewhat harmonic with the probable outcome of various types of events, given human nature (genetics).

    Also, the speculative assertion that these “signals” are denigrating lives is weak. More likely is the signal is simply a reflection of something else, and that would be the place to find the blame if one chooses to go down that road.

    I challenge the authors to think through a thought experiment about what the world would be like if there were incentives that discouraged the family unit. Remember, the vast majority of the population is heterosexual. What would the world be like with a bunch of single, likely disgruntled males running around? Nobody causes more trouble than the 15-35 year-old single male. A close second is probably the 36-55 year-old single male.

    So if any of these incentives actually work to increase the traditional family unit, the cost mentioned above is likely paid back many times over. Some more thought needs to be given to 2nd and 3rd order consequences.

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  2. Novaseeker says:

    The old contract of marriage — a social contract at least as much as a personal one — was that a woman exchanged sexual fidelity, loyalty and child bearing and raising for a man providing materially for her and her children, pledging sexual loyalty, and investing parentally in their children.

    This has been almost completely destroyed by feminist marriage, or, as one of my internet colleagues refers to it: “Marriage 2.0″. Let’s take a look at the components.

    * Sexual Fidelity — No longer relevant to marital separation. Monogamy not “enforceable” in marriage, due to no penalty for infidelity for men or women.
    * Child bearing — many marriages are not fecund, and this is socially acceptable.
    * Provision for wife and child — enforced even after marriage by current family law, providing no incentive to remain married, while retaining incentives for women to get married.
    * Parental investment of fathers — dumbed down to mean child support in many cases, with 4 days per month seen as adequate, while books are written stating that father involvement is unimportant

    When we look at these factors, we see that none of them apply to Marriage 2.0. Feminist marriage is all about “personal happiness” — and to the extent marriage does not fulfill one’s personal happiness at a given point in time, feminist divorce law is there to let you hit the eject button and pursue your happiness elsewhere. This is a relationship model of its own, but it is not marriage, not as marriage has been understood in virtually all successful civilizations.

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  3. Dan Markel says:

    thanks for taking the time to write. We don’t deny the value of the family unit at all for purposes of civil law and the institutions of distributive justice. But even in the non-criminal context, there is a substantial reason to ensure that the law keeps up with changing conceptions of intimate life and private ordering.

    In the criminal law, as we explain in the book and a bit over the coming posts, the incentives we identify do very little (or so we think) to promote accurate and fair punishment or prevent crime. We think and hope that’s worth highlighting. Best wishes,

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  4. Ethan Leib says:

    Glad you aren’t surprised, Charles. You obviously have a sophisticated way of thinking through how things get to be the way they are (by accident, often, and piecemeal). But surely some coherence in public policy surrounding our incarceration practices would be better than incoherence. After all, the criminal law takes us into areas where the law is its most violent and coercive. Accidents and randomness don’t seem like good things in this context.

    We’re ultimately pretty skeptical that “failing” to give family members special privileges (and burdens) will be criminogenic — and we actually think those worried about criminogenesis, as you seem to be, should be much more concerned about privileges, for reasons we specify in the book.

    Dignity and respect are easy to slight. But usually only by those who don’t feel the sting of stigma.

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  5. Karen says:

    Novaseeker correctly points out that modern marriage is merely a hangover of old ideas and makes no sense in the modern age. However, I disagree that this change has anything to do with feminism as it is commonly defined today. It does have everything to do with human rights for women and the outlawing of child brides, however. I don’t suppose even Novaseeker believes that we should return to those days.

    In the “old days”, marriage was a social necessity due to the extreme social restrictions placed on female children and women. Women were prevented by law from choosing their own partners, getting an education, owning property, controlling their fertility, or pursuing a career. Female children were married off to the highest bidder as soon as they reached puberty–and their feelings and needs were of course not considered in the transaction. Adult married women were also usually significantly debilitated by constant childbearing and died at a young age. Without a man tied to her, a woman and her children would certainly starve unless she turned to prostitution. Marriage was necessary to prevent women and their children from starving to death after their sex partners/fathers inevitably lost interest and went on their way.

    Also I must note that today, child support has nothing to do with marriage. My state requires fathers to pay child support for whoever their children are living with until they 18 years of age, whether or not man was ever married to the child’s mother. On the other hand, no parenting time or custody will be considered for a father unless he was married to the mother at some time. Thus, marriage actually protects the parental rights of the father vs the mother, while having no impact at all on his child support obligations.

    I am also curious about why novaseeker thinks it is so awful that it is possible to end a marriage if one partner wants out. I have heard this from many pro-marriage pundits, but it puzzles me. What possible benefit to anyone could there be from forcing people who hate each other to live with each other forever? The situation is also horrible for the children. We’ve all seen lots of painful marriages—how are these good?

    Even in the “old” days, there were provisions for dissolving marriages–except usually only the man could initiate them. In the old testament of the Bible, it is said that a Jewish man is permitted to divorce his wife by just saying “I divorce you” three times. Of course, in those days men were also permitted to have many wives–another reason why idealizing mythical “old” models of marriage is problematic.

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  6. Dustin Stoltz says:

    Both Charles and Novaseeker are making highly speculative assumptions about what is and what was:

    “The examples actually seem somewhat harmonic with the probable outcome of various types of events, given human nature (genetics).”


    “The old contract of marriage…”

    Even considering both of these statements as valid, the world is in a constant state of flux – any effort to maintain the status quo will do its own part to upset it – therefore we need to develop dynamic systems that understand the need for change and innovation.

    We, collectively and historically, have defined masculinity as such that creates the outcome Charles eluded to “Nobody causes more trouble than the 15-35 year-old single male.” This definition is partly because of the role the male played in the “old contract” Novaseeker mentioned. Males have been told that it is okay to be irresponsible simply because we do not have a family to care for or pay the penalty for a deeds.

    However, regardless of whether we have children or a spouse our actions have consequences AND those consequences are relatively the SAME to society whether or not we have children or a spouse at the time of our action.

    I am accountable to my friend in the same way I am accountable to my sister or spouse or parent. I hold my friend as more so my kin than my blood. To my knowledge the law in no way recognizes a close bond between friends (can someone cite examples?). I think we need to rethink a few things.

    Unfortunately the law is not dynamic but neither is conservative ideologies espousing an imagined utopia long past.

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  7. Travis says:

    I don’t remember all of the details (and it would require me to dig out my old Torts notes / booke) but the law DOES recognize duties between friends under certain circumstances. I believe it dealt primarily with whether an undertaking was a “co-venture” or not, and more likely than not any duties owed to friends vary by state and are not nearly as robust as familial duties, and rights.

    I thing much of the social implications are hard to unravel as far as the legal recognition of the family goes. While it obviously depends partly on the theory for justification of the criminal law system (retributive, restitutive, etc.) it makes sense under certain circumstances that if a person is committing a crime in order to meet the basic needs of a familial obligation that they are slightly less culpable, or that they may not have malicious intent altogether (crime committed purely through altruism?)

    Additionally, it makes sense socially, sort of, to go “easier” on family members because one could imagine, particularly in the case of children, that there would be a correlation between the harshness of the sentence on a parent and the likelihood of the child becoming a criminal at some point (though there is also a chance of a negative correlation to, someone should study this or perhaps I should know it.)

    I think one of the major problems though, is inconsistency between different types of “families” and additionally whether the imposition of softer sentences on family members is more of an incentive to partake in traditional family life, or to reduce the disincentive for criminal activities.

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  8. MW says:

    Here’s a family value’s puzzle due to Lewis Carroll:

    The Governor of Kgovjni wants to give a very small dinner party, and invites his father’s brother-in-law, his brother’s father-in-law, his father-in-law’s brother, and his brother-in-law’s father. Find the [smallest possible] number of guests.

    If you give up, a web search will find the answer. A follow-on problem due to me:

    Can you reduce the number of guests in the previous problem by relaxing the marriage consanguinity laws? If so, what is the least relaxation which will achieve this?

    Straying back onto topic, parent-child incest laws I think are well justified both on genetic and power-differential terms.

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