Sentencing Discounts for Parents? A Guest Post

We have recently featured two guest posts (here and here) 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 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. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.

By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.

Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.

Time-Deferred Incarceration

For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.

During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.

Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.

As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.


Jessica

I think this is an extraordinary idea. In an everchanging legal system like that of the US, more and more cases surface which require so much more of an in-depth investigation in order to provide justice. The idea that family/marital/partner ties could be a substantial point in deciding on a punishment for offenders explodes into many areas of law. The social aspect itself is controversial in one's idea of justice, but arguments can be made on both sides-punish those who violated another's soveriegnty, or allow those innocent parties their normal lives? I think one of the most interesting points overlaps into gay marraige law- one more legal glitch that hinder gay couples from receiving rights that straight couples might.

Tribrix

Just an anecdote:

A very close friend of mine committed a felony before becoming pregnant. The investigation began while she was pregnant but the arresting officers waited until the baby was 6 weeks old before making the arrest. Further, it seems the court gave great weight to her being a new mother, unlikely to commit the same crime again, and let her off with probation and time served (one night in jail).

Since this happened ten years ago, I know the court made a good decision, but was it the right one?

Mark

I'll just spend my life committing crimes and having kids in order to defer my prison time, I'll eventually stop having kids and use prison as my retirement home.

Dan Markel

@3, Mark, we take that into account in the book; we think the time-deferral option would not be extended to those who have additional children. Btw, if you've spent time in prisons, or studying them, chances are you'll not want to avail yourself of the option of spending your golden years there.

@1, Jessica, thanks!

Dustin Stoltz

"It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy"

Wouldn't it also be reasonably to assume that having a parent that commits a felony and raise a child is also criminogenic?

I think the key flaw is the legal definition of family as addressed in this article:

we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to "irreplaceable caregivers."

However, this gets into reconsidering definitions of normative familial behaviors or outcomes. Another issue is the stigma associated with non-traditional families. For instance how the family itself may not be "criminogenic" but rather the way children in those settings are treated by others because of that stigma.

DC

One thing that I don't see discussed is this:

If you have huge family obligations to the point where you're irreplaceable, then even a less drastic punishment will have a larger impact.

The analogy is that someone that has $1000 doesn't care if they have to pay a $10 parking ticket, while someone with only $20 cares quite a lot about having to pay a $10 parking ticket. Similarly, for the same amount of punishment, someone with a small amount of freedom (due to family obligations) is likely to be punished quite a bit more than someone that does not have such obligations.

Gritsforbreakfast

An interesting discussion, but the thick theoretical jargon makes it hard to read. Makes me a little trepidatious about taking on a book-length version.

Rob Frenser

I find the tenor of your Time-Deferred Incarceration a little disturbing. If the crime is serious enough to require prison time it me often be the case that without incarnation the person will continue to commit that crime. Indeed a major justification for lengthening of sentences in the last 3 decades has been 'keeping the criminals off the streets'. If the person is dangerous do we really want them out of prison?

If on the other hand we are not concerned with recidivism then your proposals sounds overly harsh. Lets assume on average that there will need to be a 10 year deferral of incarceration. During that time the offender experiences severe restrictions and knows that inevitable prison time awaits. Talk about asking for psychological trauma, suicide and unnecessary suffering. When we send them to prison for x years they eventually are far more severely punished than someone who has no dependents. That is hardly just!

Then we have to ask ourselves if the person has not re-offended during those 10 years is it really necessary to incarcerate them? They until that point have behaved themselves. They have been punished (albeit less harshly). And given that prison time creates a social environment where re-offending is more likely wouldn't society be worse off by incarcerating them. At that point I would let them go free.

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Dan

If the person with a family foresees that incarceration will also negatively impact his family, that means that the same sentence could be a more severe punishment for him (and thus a stronger deterrent). In other words, a 6 month sentence for a family man could be just as bad as (or even worse than) a one year sentence for a single man. So a reduced sentence for those with family responsibilities, instead of being a windfall, could actually help equalize the severity of the punishment (and the strength of the deterrent).

BSK

I just want to say that I appreciate your continued focus on the ways in which these current laws (as well as a host of others) are biased towards hetero-normative lifestyles. Thank you!

htb

This system creates new incentives. So I commit a crime. If I can convince the courts that my kids need me -- that is, that there is no other parent to care for them -- then I can stay out of prison.

Next step: "Honey, would you mind disappearing for the next few months? If you don't abandon the kids, I'll end up in prison. After sentencing, it's okay if you reappear, just so long as the cops don't find out."

Not to mention: "Hey, I don't expect to live very long, so I can commit all the crimes I want, because the baby is just three years old, and I'll be dead before she's 18."

Much better would be greater emphasis on home detention, weekend incarceration, work-release programs, etc.

Oh, and if your crime was bad enough to win a many-years-long sentence -- well, I don't really expect that you'll be a good parent anyway. If you're in prison for beating your spouse half to death in a drugged state, I don't want you anywhere near any vulnerable person.

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Ilze42

Not to denude the merits of any of the sound arguments made by the authors but I find it disturbing that so far, no one has mentioned what happens to the families of the victims of the crimes.
Are they compensated (state support) for the loss or impairment of their irreplaceable caregivers?
I know this happens in some cases but not in all - perhaps another avenue for the use of distributive justice.
I also have concerns about children continuing to be raised by conviced felons if that is a basis for a deferred sentence.

Jay Livington

"giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others."

Is there empirical evidence for this? In venues where sentencing takes parental status into account, do parents commit more crimes than parents elsewhere?

Marcia

I can see this proposal making sense if the expected duration of caring is short relative to the proposed incarceration time. For example, if the defendant is likely to receive, say, a ten year sentence for a crime and they are caring for a terminally ill spouse or parent who is expected to die within months, such a proposal would make sense. The recipient of care is not disadvantaged, the defendant is punished appropriately and there is a temporal connection between the crime and punishment. However, if the defendant is the parent of a five year old child and their incarceration is deferred until the child is 18, they are effectively receiving state punishment for 23 years to fulfil a ten year sentence. Plus if they've managed to behave themselves for 13 years, one might argue the incarceration is unnecessary.

Stolz and htb also raise valid points - depending on the crime committed, it may be far better for the recipient of care to be looked after by someone else. Should a person convicted of extortion be allowed to avoid jail so they can look after an elderly, wealthy parent?

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Rich A.

The notion that marginal changes in sentencing based on family status has any bearing on criminal activity seems absurd to me. This assumes some level of forward-looking, rational thinking on the part of a criminal. If this assumption breaks down, the entire thesis is of the angels on the head of a pin variety.

Dr.A

What if we go the other way? How about taking the genetic predisposition route and locking away the blood relatives of people who commit crimes? Given the % chance of a gene being in a person, they get a % sentence - perhaps with 'preventive' training.
This idea doesn't sound that great, but interesting to explore. Perhaps the worst part of it is that prison on its face seems to serve a purpose mostly in case of violent criminals - and even then it doesn't seem to be that effective at eliminating reincidence or disuading them in the first place.

michelle

I think this is completely misguided. "Les Miserables" may be a call to the many who fall for the beguiling appeal of some sort. That bases itself on the idea of "good people doing bad things for their families."

In actual evidence, people who steal from society or harm another, probably are not the best people at home either. They can be authoritarian to an extreme or overtly and disastrously abusive.

On the other hand, a mother on welfare and children potentially in foster care. Can be a really bad situation too.

Aaron

Perhaps we should just take a step back and ask if many things we often put people in jail for (drug use, etc.) truly warrant jail time.