by Dan Markel, Jennifer M. Collins and Ethan J. Leib. New York: Oxford University Press, March 2009. 252 pp. Hardback. $75.00/£50.00. ISBN: 9780195380064.

Reviewed by J. Michael Olivero, Department of Law and Justice, Central Washington University. Email: olivero [at]


The book, PRIVILEGE OR PUNISHMENT: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES, by Dan Markel, Jennifer M. Collins and Ethan J. Leib, examines a previously under-researched area of criminal justice policy; i.e., the intersection between family status and criminal justice policy. The authors examine the questions of how does the criminal justice system approach the issue of family status and how should that status be recognized? The legal system treats perpetrators and witnesses differently based on relation to the victim, and treats potential parolees differently based on family ties. The authors point out conflict between a criminal justice system based on liberal democratic notions of equality and non-discrimination and assumptions concerning the appropriate role of family status for defendants in the system. In doing so, they point out certain criminal justice policies designed with the intention of equality, that are actually discriminatorily applied, both with leniency and harshness, based upon family status. Interspersed throughout the book and summarized in the conclusion, are the authors’ viewpoint opposing most family status discrimination. They believe that the costs of providing family ties benefits or burdens are in conflict with the purposes of justice in a liberal democratic society.

Markel, Collins and Lieb examine distinctively purposeful criminal justice policies that consciously target defendants for special privileges or burdens on account of their family status. They identify distinct normative concerns that may arise from granting special accommodations based upon a defendant’s family status. They believe that if we examine the historical development of family benefits policy in criminal justice, these benefits served to support inappropriate norms such as male domination over women. Second, they are concerned that family benefits hinder the prosecution or exoneration of the accused. Third, benefits or burdens lead to inappropriate discrimination based upon family status; thus, norms of equality are disrupted. Lastly, they believe that some family benefits may actually incite criminal behavior and make criminal enterprise more successful.

Some state policies provide criminal defendants privileges based upon their family status. The term for this situation is “family ties benefits.” One form of benefit has to do with the state’s constraints on evidence gathering that prohibits the use of family members to obtain evidence to be used against the defendant. Spousal immunity limits the government’s ability to present all relevant evidence, under the auspices [*64] that it ensures open communication between spouses necessary in a confidential relationship.

Other laws said to provide benefits to criminals based upon their family status include shield laws that protect family members from prosecution for harboring family relatives, who are fugitives from justice. In the United States, fourteen states will not allow the prosecution of family members for harboring fugitives.

The authors also look at distinctions in different treatment between family perpetrated violence (domestic violence) and stranger perpetrated violence. Family status may assist perpetrators of domestic violence when assaults are seen as being something to be dealt with outside of the scope of the criminal justice system and with treatment rather than punishment. The “Parental discipline defense” (p.9) exempts parents for assaults, defined as corporal punishment for legitimate purposes on children that are reasonable. They analyze manslaughter when there is “adequate provocation;” i.e. when a defendant finds a spouse engaged in infidelity (p.10). They suggest that there are benefits, or reductions in liabilities, to having committed family violence that are not present with stranger directed violence.

They also examine pretrial release, where defendant release takes into account family ties and responsibilities for the care of dependent family members. In a similar manner, defendants may benefit from family ties at time of sentencing considerations and some prison policy, such as furlough policies. They conclude that at both the state and federal level there are a number of family ties benefits. However, the Markel, Collins and Lieb believe that the costs of benefits in these situations are contradictory to justice. In general, they suggest that the majority of these benefits are not supporting a substantial state interest. Where there is a substantial state interest, such as facilitating care giving, they seek to revise policies so that they are family status neutral.

In contrast to family ties benefits, there are also “family ties burdens.” In one sense, all defendants who do not receive a family status benefit are receiving a family status burden. Further in other situations, if not for a family tie status, a person would not be found liable of a crime. Family ties burdens include “omissions liability” with respect to children as well as criminal liability for failing to rescue kin from harm. As was the case with family status benefits, the authors use similar criticism or concerns to lend support for their conclusion against burdens. Based on their normative framework they find limited support for most of the burdens that they examine and recommended decriminalization. The authors believe that there is only limited justification for family ties burdens and that the burdens result in infringing upon citizen liberty interests. If we are going to have family ties burdens, they need to be narrowly constructed to achieve a legitimate state concern and only use criminal justice measures when other means are unavailable. Further, unlike family status benefits, burdens may not generate or incite further criminal behavior.

The authors conclude that there may be places for the state to recognize and accommodate families and care giving, [*65] however the criminal justice system should have a very limited role in this. The purpose of the criminal justice system is an accurate and fair determination of guilt and innocence and the protection of citizens from harm. Antithetical to these goals are benefitting or burdening defendants based upon their status in the state’s definition of a family unit. They believe that propping up families through benefits and burdens is unacceptable from the standpoints of liberalism, minimalism and criminal justice, and that it is often plainly and perniciously discriminatory.

This work could have really been augmented by cross-cultural comparisons, as its focus remains on criminal justice and family law in the United States. It would be interesting to see how other cultures have managed these same issues or how normative conceptions and values vary, impacting on criminal justice policy. Another serious problem has to do with the normative concerns that arise from providing criminal justice benefits and burdens to defendants. The authors readily admit that all four concerns do not apply to every case examined. One of the reasons that all four concerns fails to apply to every case has to do with their assumptions about the appropriate goals and objectives of the criminal justice system. Justice may not mandate that all persons before the criminal justice system should be treated equally based upon the limited criteria espoused by the writers. The authors fall into a kind of reductionist justice trap of “you do the crime, you deserve the time,” independent the dynamic nature of human relationships and idiosyncrasies of each person before the state. Justice is just not as easy and simple as the objective and emotionally absent criteria used by the authors. For example, mandating that a loved one provide evidence to convict a family member or to turn in a fugitive family member is counter to normative values concerning love and family membership. The intent is not to subvert justice, but has to do with having an understanding of love and forcing family members to act in a manner that will injure someone they love at a root and fundamental level of humanity, being recognized by the state. The problem comes down to values and weights and the authors may be extolling values and a sense of morality that is not shared by many members of society.

In conclusion, this work is easy to read and understandable and will be of interest to those working in the areas of criminal justice and family law. It also addresses concerns and issues of limited previous research and analysis. Not all readers will share their reductionist, formalistic notions of the criminal justice system make their evaluation of these practices of limited use for many, but their contribution to the substantive area still stands on its own.

© Copyright 2011 by the author, J. Michael Olivero.