When the Fugitive Is a Family Member: A Guest Post

Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, 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.

Here is their second post.

Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.

From an article in The Flint Journal:

Kelley Thomas‘s 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad’s doorstep on E. Lorado Avenue in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County Prosecutor David Leyton. “The fact that he’s the father was discussed by my staff, and we will take that into consideration as the case progresses,” Leyton said. “It’s hard to turn your back on your own flesh and blood.”

The stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.

In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”

Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)

In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.

Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”

Rationales in Defense of the Exemptions

What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”

Our View (Against the Exemptions)

Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.

First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.

Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members

Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.

While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.

Finally, these statutory exemptions create perverse and dangerous incentives that Freakonomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”

For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.

Leave A Comment

Comments are moderated and generally will be posted if they are on-topic and not abusive.

 

COMMENTS: 43

View All Comments »
  1. Tribrix says:

    I hope my offspring would realize I will report them if they commit a crime, though it may break my heart to do so. In my mind, that is where our duty lies, both to our families and our society. Shielding them only compounds everyones problems (as the article points out). I can see the desire for such laws and hope individuals do the right thing anyway.

    Thumb up 0 Thumb down 0
  2. Shay says:

    There are some members of the family I would turn in for a traffic ticket..

    (mostly in-laws).

    Thumb up 1 Thumb down 0
  3. coldtusker says:

    Which states provide these exemptions?

    Well-loved. Like or Dislike: Thumb up 5 Thumb down 0
  4. Mike says:

    Sure, it can be hard to turn in a family member. For many, it can be equally hard to turn in a good friend. Just because something is hard doesn’t make it wrong.

    Thumb up 0 Thumb down 0
  5. Louise says:

    Maybe it has an unintended positive consequence: if a fugitive is likely to seek refuge with a family member, law enforcers can concentrate efforts on monitoring these avenues and may have more of a chance of catching him (or her)?

    Thumb up 1 Thumb down 0
  6. Bux says:

    This is very interesting and thought-provoking stuff. I repeat my comment that I posted on the first in this series here in case it was missed:

    I scanned your book briefly. I think what you are missing is the perspective of Criminologists. Have you consulted with any real Criminologists in writing your book or formulating your ideas? You state in the intro to the book that it integrates “legal analysis, political theory, and public policy”. But this seems like a topic that Criminologists would very much be interested and have something significantly to add.

    For example, have you taken a look at the work of Robert Sampson (Harvard) and John Laub (Univ. of Maryland)? In the longest longitudinal study that has ever been conducted in the field (approximately a 50 year follow-up), they track a group of juvenile delinquents from Boston to their 70s. They find that one of the largest factors leading to desistance from criminal behavior over the lifecourse is marriage/family. Their work is situated within the body of criminological theory called “Social Control Theory”, which posits that bonds to society (such as marriage/family, employment, school, etc.) significantly reduces delinquent/criminal behavior. Social Control Theory is one of the most important theories in criminology and has found a fair bit of empirical support.

    So while your analysis suggests that family factors should mostly be discounted in the criminal justice system, it seems to me that we may be preventing a lot of criminal behavior (and as a consequence saving victims) by promoting family among criminals. In fact, it stands to reason to me that we should be doing more to promote the family. This is difficult to do since we can’t, for example, force offenders to get married. But what I’ve heard John Laub talk about recently is taking ideas from the recent book “Nudge” by Thaler and Sunstein, and applying them to marriage/family among offenders. In case you’re not familiar with the book, the authors basically examine healthcare and examine ways to “nudge” people towards a more healthy lifestyle in order to reduce healthcare costs. The same could apply within the criminal justice system in order to “nudge” offenders towards marriage/family. I believe one of the authors of “Nudge” has actually blogged on this site recently. It’s an interesting concept.

    Again, I would highly recommend involving Criminologists in the debate here. Any plans to present your work at the American Society of Criminology (ASC) conference? This would be a wonderful forum to do so, and I think it would gain a lot of interest and debate.

    Thumb up 1 Thumb down 0
  7. Jonny says:

    It seems wrong to require close family members or friends to turn in a fugitive loved one, but they should not be allowed to actively be engaged in hiding them. The anecdote of the mother helping the son hide the body is disturbing, but it is equally disturbing to turn family members and friends into watchdogs for the state. There’s obviously a difficult line that must be drawn between actively helping the fugitive escape detection and capture and simply not turning him/her in, but it seems to be the best choice.

    Thumb up 0 Thumb down 0
  8. Tristan says:

    I think these types of laws point out the flaws in our legal/judicial system. Everyone wants to put criminals in jail, unless they’re family, then they can excuse them.

    A well designed legal system should do not only what’s best for the society, but for the individual as well, someone who can’t help but commit crimes should be held away from the public.

    If we think that we shouldn’t turn in our relatives that means that we don’t have empathy for the “common criminal” and that we think our jails are too harsh – those are the problems we should be fixing.

    Thumb up 0 Thumb down 0