Law School Scholar Looks at Benefits and Burdens of Family in the Criminal Justice System

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New York, August 6, 2009 – If you ask Ethan J. Leib, a scholar-in-residence at Columbia Law School, the junction where crime, punishment and family ties meet is thorny.

 

Unlike friendships, a family link can often result in leaner prison sentences. For example, it could help a defendant when a spouse legally decides not to testify against their partner. Or, it could mean leniency when a family member harbors another as a fugitive.

 

“They say blood is thicker than water, but really it’s just thicker than co-citizenship,” said Leib, who is finishing a term as scholar-in-residence at Columbia Law School and whose new book, Privilege or Punish, explores how the complexities of the legal system relate to family.

 

Along with co-authors Dan Markel, of Florida State University College of Law, and  Jennifer Collins of Wake Forest University School of Law, Leib worries these legal quandaries are eroding confidence in the outcome of certain criminal cases.

 

But as legally advantageous as blood ties can be, Leib counters they can also be burdensome.

 

For instance, when David Kaczynski chose to give the name of his brother, Ted, – better know as the Unabomber – to federal investigators in 1996, he did so only after securing assurances they would not mount a capital case. Meanwhile, Ted Kaczynski was still on the loose, with potential to strike again.

 

Of course, not everyone is willing to make the choice to turn in a family member, Leib points out. Some will help a loved one circumvent the law -- not because they do not know right from wrong, but because of loyalty to a relative.

 

This happened in 1997 when Maryland high-school senior Samuel Sheinbein was charged in the murder of a teenage boy, who was found badly burned and dismembered. But before Sheinbein could be arrested, his father, a lawyer, helped his son escape to Israel. Israel refused to extradite Sheinbein. It allowed Sheinbein to plead guilty there, and he received a lesser sentence of 24 years in prison.

 

Leib says Kaczynski and Sheinbein illustrate how families have the power to assist or thwart law enforcement.

 

“It’s quite unbelievable when you think about it,” Leib said. “And I think we were all surprised to learn there wasn’t more research on this subject already available. It wasn’t hard to decide that we needed to write this book.”

 

And although family associations also affect civil matters, Leib said it was more practical and interesting to tackle the criminal legal affairs revolving around pre-trial releases, sentencing, bigamy, incest, and adultery.

 

“Most of the book targets how, for better and worse, family status somehow matters” in the criminal justice system, Leib said. “It is somehow central to punishment and privilege and we ask why. Why does one group of people get the benefit? Why does another get punished? And in many cases each comes down to family association. It’s very interesting.”

 

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