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Univ. of San Diego School of Law

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Saturday, September 30, 2006

New Article Spotlight: Criminal Justice and the Challenge of Family Ties

Markel_1From SSRN.com: Florida State University College of Law CrimProf Dan Markel, Wake Forest University College of Law CrimProf Jennifer M. Collins, and University of California Hastings College of Law Ethan J. Leib recently published Criminal Justice and the Challenge of Family Ties.  Here is the Abstract:

Leib_2This Article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system.

Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a 'Spartan' presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.

Here is what the PrawfsBlawg had to say: You still haven't downloaded it? Ok, here are some of our crazier more provocative claims and findings. 

First, did you know that in fourteen states you could harbor a fugitive without penalty--as long as that person is a family member? We think that's a bad idea and we'll tell you why. 

Second, we think the evidentiary privileges for spouses and family members in the criminal justice system should be eliminated. Full stop.  Read the paper and we'll tell you why. 

Third, we explain why sentencing discounts for people on account of family ties and responsibilities should be eliminated.  We argue that such discounts are wrong, illiberal, and bad policy, and that in the case of the "irreplaceable caregiver," time-delayed sentencing should be used instead where possible.  "What's time-delayed sentencing?" you ask.  Read the paper and we'll explain...

[Mark Godsey]

http://lawprofessors.typepad.com/crimprof_blog/2006/10/new_article_spo.html

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