Criminal Justice and the Challenge of Family Ties
Dan Markel, Jennifer M. Collins & Ethan J. Leib | 2007 U. Ill. L. Rev. 1147
This 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 re-vealing a variety of laws that together form a string of “family ties bene-fits” pervading the criminal justice system. Notwithstanding our recogni-tion 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 benefits within a criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, and instead focus on functions served by established rela-tionships of care-giving responsibility.