(Dan Markel) In two previous posts, Ethan, Jennifer Collins and I identified some practices that we characterize as family ties burdens. Here, we present a normative framework for analyzing whether such penalties or burdens can be justified. First, we quickly explain why we adopt a defendant-centered perspective in this project. Then, we revisit some of the costs of family ties benefits that we adumbrated and explored last year to see if any retain applicability in this new context of family ties burdens. Finally, we highlight the voluntary care-giving feature we see in the structure of family ties burdens, a feature which we think can serve as a guide for scrutinizing burdens more generally. Informed by this obscured but intelligible principle, we offer some thoughts on how to restructure family ties burden allocations within the criminal justice system.
- Why a Defendant-Centered Perspective?
We must bear in mind that evaluating a policy from the defendant’s perspective is important because it is after all the defendant whose liberty the state seeks to place in peril. The conduct rules at the core of this Article are aimed at defendants – and it seems necessary to analyze those conduct rules on their own terms. After all, it is the defendants who are coerced; and the criminal justice system’s coercive nature is its most important feature demanding justification.
But we aren’t naïve. There is more to say on the matter. In characterizing family ties burdens, we have focused exclusively upon burdens imposed upon de-fendants and potential defendants, even though it is often the case that someone within the family – or “the family” as a social institution – could potentially be described as benefitting from the “burden.” In other words, what appears to be a penalty on familial status in an individual case could be imposed as part of a strat-egy to confer benefits to the social institution of the family as a whole. For in-stance, the recent criminalization of nonpayment of child support looks like a “family ties burden” in the sense we defined it earlier. That’s because, as a general matter, failure to pay debt is not a reason for criminal punishment. Indeed, other legal mechanisms exist to help debtors, most prominently, bankruptcy. But now, failure to pay child support, which is a form of debt, is a basis in many jurisdictions for criminal punishment. Thus, failures to meet some kinds of intra-familial financial obligations are now penalized much more harshly than the failure to meet other financial obligations. That definitely creates a burden on a defendant, at least as we defined it earlier. Indeed, in some cases, the burden imposed on the defendant is also a burden on those whom it is allegedly supposed to help. Thus, for example, a woman whose ex-spouse is jailed for failure to pay child support may object on the ground that this burden imposes a terrible tax on her family as well as on the defendant, in that it reduces the ability of her children’s father to play any kind of meaningful role in their lives. Thus, many of the practices we have described in Part I powerfully affect family interests beyond those of just the defendant.
Contacting a Detroit Criminal Lawyer is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony.