Wednesday, December 10, 2008
Punishing Family Status, 88 B.U. L. Rev. 1327 (2008), by Jennifer M. Collins (Wake Forest), Ethan J. Leib (UC-Hastings), and Dan Markel (FSU), is a thoughtful new article linking the ways in which family status interacts with the criminal justice system. They contend:
Certain crimes permit prosecution of a defendant for conduct that would otherwise be lawful in the absence of the defendant's familial connection to the crime. Incest statutes generally proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a private debt. We focus on statutes for certain omissions and parental responsibility liability, incest, bigamy, adultery, and nonpayment of child and parental support. In all these examples, state-determined familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct. Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system's decision to criminalize certain conduct on the basis of family status.
Id. at 1334-5.
While they limit some of the constitutional ramifications of their research and arguments, they do provide a very provocative argument for rigorous judicial review:
While we do not make the constitutional claim that family status should be a suspect classification worthy of strict scrutiny, we do believe that, as a policy matter, the government should be skeptical of the use of family status. In other words, to use the language of equal protection analysis without making the constitutional claim, the objective of the government should be at least "important" and perhaps "compelling," and the means adopted to pursue that objective should be "narrowly tailored" to achieve that objective, looking especially to see if alternative measures might be just as effective. We also believe that impairment of liberties (including those associated with sexual autonomy) by pain of criminal sanction on the basis of family status needs to survive heightened - if not strict - scrutiny as a matter of policy.
Id. at 1333.
The article is part of a forthcoming book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford University Press, forthcoming Apr. 2009).