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.


htb

Steve (@18), we're not just talking about "lying to the police". We're also talking about punishing people for not *volunteering* information to the police.

That's what "harboring" means: your spouse (or child or parent) came home, and you fed him (or her) dinner, gave him a bed, or even gave him money to leave town, instead of promptly and voluntarily calling the police so they could conveniently capture him.

Compelled speech is not free speech.

David

Government is not more important than family. Government needs to support families, and not seek to break them apart. There are quite a few relationships that we already recognize as above any duty to inform the police, and I don't see that we're doing any great harm by extending this to family.

Sean Jin

"...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."

But as we just saw in the beginning of the post, often family values, love, and other factors lead to family members harboring their fugitive kin regardless of the potential punishment.
Thus, NOT having familial exemptions for harboring family fugitives is NOT going to deter them from doing so, so having exemptions or not, the guilty offenders are going to be harder to catch.
This argument seems to want to needlessly punish the colluding family members after the fact, after the obstruction of justice has already been done.

Simmo London

The Times (UK version, not NY) today - 15 July 09 - reports a similar case to the Minnesota one in SJD's main piece above except that the mother was a serving police officer.

The full story:

http://www.timesonline.co.uk/tol/news/uk/crime/article6702281.ece

Why should anyone - family member or otherwise - legally be able to harbour a suspected violent criminal? I couldn't see any justification until I started to think about some of the cases in the UK where children have been taken into public care after unsubstantiated allegations of child abuse or, indeed, just potential for neglect, and never returned despite nothing being proven and, in some cases, no substantive evidence being made available. Perhaps, the law should distinguish between cases where the family member had reason to believe that a crime had taken place and those where no such presumption exists.

Simmo London

That should be 14 July 09

Jon

Perhaps this is my lower class background speaking, but there are no circumstances in which I would choose the nation or society over my own family. This is an instinctive reaction and no amount of judicial engineering will move me from that position.

I think this reaction is rooted in a worldview that is antithetical to the writers of this article (which does sound a trifle upper-middle class). There are, I believe, socioeconomic factors at play here. For the upper-middle echelon of society, family is inherently a social bond and nothing more. Whether or not you are on good terms with your family matters only on the interpersonal level; there are no economic ties further tightening the bond.

Family is always there and the government is not. When people lose their jobs, can't pay the rent, or other fall into disaster, only a fool looks to the government over family. The family bond is simply more important than the law. At least where I come from.

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D

I must agree, this is a poorly-argued post. It seems barbaric to prosecute someone trying to protect their child. It might be worth it, if not doing so does really encourage people to commit crimes, but surely there's evidence about this, rather than just plausible arguments? Does Florida really have more people who successfully evade the police because of family?

Stu

Hmmm....

I suppose I would vote for: no laws anywhere for harboring family fugitives. Why? Because if the police are not on the ball enough to go straight to family residences and check them out immediately for the fugitive, why should the family be made to pay for law enforcement's inability to get their job done?

:-)

Chance

If I believed my family member did the crime, and would recieve a fair trial, I suppose I'd turn them in. However, I do not trust our legal system to do justice, so if it is between my child and the law, I'm siding with my child 99.9% of the time.

Jake

Is there any strong empirical evidence supporting this viewpoint? Or is this just an academic exercise?

Florida was used as an example of an exemption State. That State's legal and criminal justice systems are a mess. Increasing the number of crimes and people that can be prosecuted will not prevent future crimes or improve the process. It will just further stress a failing system.

Tribrix

Posts concentrating on Police States and Government miss the point. I hate to go back to Socrates, but, by living here, you agree to abide by the laws of this place. If you don't like them, you are free to leave.

Harboring your guilty family member not only damages society, by allowing someone to go unpunished, it also harms the guilty party by allowing them to believe that their behavior is acceptable. Even if you disagree with the law, by living here, you consent to live by that law, and aught not teach your family members that violating it is appropriate.

If you are not actively working to change the law you disagree with by petitioning your legislature or running for office yourself, then breaking or encouraging others to break it is just hypocrisy. Easier just to move to a jurisdiction which agrees with your views.

This all seems very elementary to me. Am I blind to some greater truth? Obviously one might be tugged to do the easy, selfish thing and help out your family member in their time of need, but aren't we really discussing what's best to do, not what's easiest to do.

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Travis

I don't know if a lot of people commenting just don't understand the law and are commenting, or are just ignorant of some specific things.

But I would like to inform people (late to the party as this may be) that an exemption from aiding and abetting is not the same as requiring a family member to turn someone in.

One is actively assisting (even if it is after the fact). The current Fl. law noted exempts people from criminal liability for this. Things like this include disposing of evidence, providing false alibis etc. Normally these types of things have a LOT of criminal liability, in fact they can carry the same liability of the original crime.

We're not talking here about imposing a familial duty to REPORT criminal activity of family members. In fact for most states and jurisdictions there is NO duty to report a crime committed by anyone, even strangers.

What we should be considering is whether laws that exempt family members create a greater incentive to involve others in your criminal ventures. AFAIK, the supreme court quote is not about accessory in general, but about conspiracy, but the quote still rings true. Involving others in your crime, assuming they are committed, makes it more difficult to prosecute. That is true before, during or after.

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Dan Markel

Thanks for these great comments. I will respond to some other ones later but I wanted to draw on some of the responses I made to the earlier post since they seem apposite here.

I think some of the comments are assuming that because we're against using family status as a vehicle for benefits and burdens, we are therefore against the protection or promotion of relationships where caregiving is at stake. These are not the same thing. As you'll see in the book, and perhaps some of our other posts, we are often willing to make concessions of various sorts to promote voluntary assumptions of caregiving regardless of whether they are or are not tied to family status that's recognized by the state. To us, that's pretty important.

As some people have already noted, there is a difference b/w innocent bystanders who don't report the crime of a relative vs the active concealment associated with harboring a fugitive. Most states have criminal laws prohibiting just the latter not the former. Granted, it's sometimes difficult to distinguish the two from an evidentiary perspective, and perhaps that's a reason for ensuring that the harboring fugitive statutes only permit convictions with evidence that the Defendant acted with knowledge or purpose (to frustrate apprehension of the fugitive) rather than recklessness or negligence.

Bux, your comments here and on the previous post are well-taken in drift, but I fear that w/o you engaging on the specifics, your overall comment misses the mark. You ask us to be mindful of the ways in which marriage/family might be conducive to the reduction of crime. There are many places in the book where we pay homage to that point, but we also think that statutes that focus on caregiving relationships are likely to achieve those goals without the harms associated with statutes that focus strictly on family status as a proxy for caregiving relationships.

Since you've got a copy of the book, I invite you to read it (and the many footnotes) through and suggest places where you think the empirical criminological evidence proves or even suggests strongly that our proposed policies (that are family status neutral) would increase crime. For the most part, I think you'll see that where our analysis turns on the existence of empirical facts, we are pretty open about that; and in some cases, we explicitly are open to reconsidering various suggestions we make. For what it's worth, we will be writing a reply to critics in the Yale Law Journal this coming year, and we hope that this issue is something we will have the chance to engage directly.

Thanks for your great comments.

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Janet V

One of the great strengths of our legal system is that it is still possible for judicial (or prosecutorial) discretion, to view criminals as individuals and crimes as individual events. I think that should be applied to these scenarios as well.

If the family member was not materially involved in the crime for which the relative is or was wanted, and if the family does not obstruct justice when police come to apprehend the felon, then what good does it do to overwhelm the courts even more than they are?

Good grief, Flint is devastated enough. Why put someone's parent through the system and let yet another home get abandoned on the tax rolls?

Dan Markel

@5, Louise, that's a really interesting thought.
Like most criminal law rules that are oriented around incentives, though, I wonder how much credit we can give to the idea that the criminal will a) know that the law in his state will shield his parents or children or spouse from prosecution for concealment/harboring and yet b) not suspect that law enforcement will be looking for him there...it's kind of one step forward and one step back.

@Bux, I forgot to mention earlier that our claims are limited to the criminal sphere; we are probably divided amongst ourselves about the extent to which we think the institutions of distributive justice (tax and social policy) should actively promote traditional or even non-traditional forms of marriage and family life. Last, I think some of the responses Adam made are helpful. The "nagging wife" routine may exist even if it's two husbands, or four husbands. The point is that thick caregiving relationships with some degree of vulnerability are more likely to be the candidates for effective social control than the status of "married." In any event, we don't deny that there are good reasons to incentivize family life (broadly understood); we're more skeptical of using the rules of the criminal justice system to achieve those benefits.

@26. I'm puzzled by the suggestion that our perspective is somehow upper-middle class in bias, but I appreciate the chance to reflect on how that might be true. FWIW, I think people belonging to lower SES are very prone to be patriots, soldiers, fire-fighters, cops, and volunteer (and thereby risk their own lives or incomes) to common causes, even if that might jeopardize the quality of life for their family members. Also, I would think that a poor person's interest in seeing justice done to the person who attacked his sister is at least as strong as the poor person's interest in protecting his sister from prosecution. But I'll have to think more about that particular class issue.

Some of the readers noted that the SCT quotation is from the conspiracy context, and off-hand, I think that's true, but it speaks to the larger concern raised by some that group crimes are more difficult to contain than crimes by solo persons. That said, as some have noted, the larger the group, the greater the risk is that there will be some unraveling, which is why family has often been a good way to ensure that loyalty to the criminal enterprise is supported by other forms of loyalty based on blood and co-residency, etc.

@11--David, thanks for the comments. There is no such law of necessity here. There's a choice b/w how big the scope of exemption should be for fugitive harboring. We argue that use of family status is both under- and over-inclusive (relative to the stated purposes of sparing persons the anguish of not helping their loved ones) and that in this case, the whole idea of exemptions from prosecution for harboring fugitives are at odds with the core purposes of criminal law. That the logic extends to other laws (such as evidentiary privileges) is a point we develop in our treatment of that exact issue in the book; and we explain why the arguments for attorney client privileges are stronger than they are for spousal or parental privileges.
Your challenge to the incentive point is a non sequitor. You can ask for data, which we freely admit we don't have (although we invite scholars to read our book and see where we think we've come up with some interesting research questions for empiricists), but whether the data exists to support responsiveness to an incentive is not the same thing as saying that the law confers an incentive or a benefit on persons who do X. We're not saying that we know crime has increased b/c of these exemptions. We're saying that they create the risk that it will. I hope our claims are understood for the modest points they make.

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BSK

Dan @35-

While I think your responses to #26 are thoughtful and not without merit, to be puzzled that there is bias in your perspective is a bit, well, puzzling. I don't think your responses got at the heart of that post, which was that, from the writer's perspective, "family" means something very different to people of different SES's. I don't know that I agree wholeheartedly with the assertion, but I do not think it is without merit and would be curious to hear further discussion about this point, both with regards to the way in which family structure/relationships may look different/similar across the spectrum, and whether there is any statistical evidence that points to the frequency with which these situations arise across the spectrum.

I do take issue with your point about someone of lower SES wanting to seek justice for his victimized sister as much as protect his criminal sister. Generally, people of lower SES, rightfully or wrongfully, do not perceive "the system" to be on their side. We have numerous instances in which we see that the criminal justice system does not work in favor of marginalized groups (including people with lower SES), as victims but particularly as the accused. If the sense (again, maybe legitimately, maybe not) is that the deck is stacked against one another, I could see why individuals with low SES would be far less likely to put the "system" first.

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Bill Gordon L. Stafford

The Case of the missing Alabama girl, Natalee Holloway, in Aruba; Joran Vandersloot most likely the culprit. If he did not murder her, he sold her into white slavery, and his Dutch Judge Father advised him in deceiving Aruba authorities, would be guilty also????

Steve

The US has the most vindictive and punitive criminal justice system among the advanced countries. It is also very obvious that it doesn't work very well compared to ALL other such countries.

However, Americans are only able to understand this when someone close to them gets tangled in its tentacles.

Why are Americans so ignorant? Is it arrogance?

Why are you always trying to foist your incompetent and despicable policies on the rest of us?

max

People who harbor fugitive relatives aren't even aware of the law -- well, no doubt most of them simply assume they are breaking the law, whether or not they actually are. If a man can turn his family into a criminal enterprise, he can do it without the help of the law. Common objectives together with credible threats of direct bodily harm to doubters or defectors are what really make a criminal organization, not special legal protections for one's associates. A mob assassin can get special protections -- by turning states evidence and getting himself enrolled in the witness protection program. This is also exceptionalism for a pragmatic purpose.

Fritzi

Lock 'em all up for aiding and abetting but allow them to share a family cell, so to speak.
Are you people blind to the consequences of harboring a murderer to kill again just because you were raised with her?
Until these comments, I thought the only sociooaths advocating this were tax-dodging ministers who promise anything and protect anyone so long as it might, just might, someday lead to financial gain.