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Privilege or Punish This page intentionally left blank Privilege or Punish Criminal Justice and the Challenge of Family Ties dan markel jennifer m. collins ethan j. leib 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2009 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. _____________________________________________ Library of Congress Cataloging-in-Publication Data Markel, Dan. Privilege or punish : criminal justice and the challenge of family ties / Dan Markel, Jennifer M. Collins & Ethan J. Leib. p. cm. Includes bibliographical references and index. ISBN 978-0-19-538006-4 ((hardback) : alk. paper) 1. Criminal justice, Administration of. 2. Family violence— Law and legislation. 3. Punishment. I. Collins, Jennifer M. II. Leib, Ethan J. III. Title. K5001.M37 2009 364—dc22 2008045517 _____________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com For Wendi, my everything, my world without end • DM For my own beloved children, Jake, Lily and Sam, and for my wonderful husband, Adam. • JMC For my parents, Naomi and Martin Leib, who better not count on parental support laws. And for my daughter Clementine Leib Schonfeld and my son Gershon Schonfeld Leib: I’ll eat you up, I love you so • EJL This page intentionally left blank Contents Acknowledgments ix Introduction xi part one Privileging Family Status A Roadmap 1 1 A Survey of Family Ties Benefits 3 A. Evidentiary Privileges 3 B. Exemptions for Family Members Harboring Fugitives 6 C. Violence Within the Family 9 D. Pretrial Release 12 E. Sentencing 12 F. Prison Policies 16 2 A Normative Framework for Family Ties Benefits 21 A. Some Prefatory Remarks 21 B. The Family and the Modern State: An Ambivalent Relationship 23 C. Some Normative Costs of Family Ties Benefits 26 D. Scrutiny of Family Ties B