"Punishing Family Status"

The title of this post is the title of this new paper available via SSRN.  Here is the abstract:

This Article spotlights two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status?  We address the first question in Part I by first revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.

Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as "burdens."  By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships.  We explain the nature of this rationale and its implications for proper policy design¿particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

Dan Markel, one of the co-authors of this paper, discusses the work in this post at PrawfsBlawg.