Criminal Law as Family Law
Andrea L. Dennis
University of Georgia School of Law
[Page 285]
Paul wanted to live with either his mother or his girlfriend in his old neighborhood, but his supervision officer told him he could not live in the neighborhood because that is where he would get in trouble. Instead, Paul lived in a three-quarter rooming house, hoping his mom or girlfriend would soon move so he could live with one of them.1
James wanted to visit his daughter who lived out of state, but his supervision officer would not authorize the travel.2
Alex was arrested on a parole-violation warrant while at the hospital with his girlfriend awaiting the birth of their child.3
Chuck worried that when he visited with his daughter at a court-supervised daycare, police would arrest him in front of his daughter for a warrant violation.4
The stories of Paul, James, Alex, and Chuck—all of whom were being supervised in the community as part of a criminal case—reveal the extent to which the criminal justice system can interfere with family life and family autonomy.5 Their stories, though, are but a small sample of what individuals and families under criminal justice control experience.
The criminal justice system has morphed dramatically over the last several decades, achieving more pervasive control over the lives of
[Page 286]
individuals than ever before.6 The expansion began with the proliferation of criminal statutes, generating the now well-known concept of over-criminalization.7 The expansion also encompassed increasing the range of possible sanctions for criminal misbehavior and creating overlapping enforcement regimes.8 Two more instances of criminal justice expansion include mass surveillance and policies and practices that swept youth out of the juvenile justice system and into the criminal justice system.9 A product of the expansion has been mass incarceration; more individuals than at any point in American history are now housed in correctional facilities.10
The expansion of criminal justice has not only placed more individuals under criminal justice control, but also has inserted itself into virtually every aspect of family life.11 The modern criminal justice system regulates intrafamilial behavior that society deems wrongful as well as many facets of family life that are considered socially desirable.12 Legislatures have enacted new criminal laws targeting behavior between family members.13 Law enforcement and prosecutors directly and indirectly punish family members for the behavior of other family members.14 Courts can obtain jurisdiction over families who are the subject or target of criminal and quasi-criminal court proceedings.15 Corrections officials separate
[Page 287]
adults, parents, and children from each other, sometimes for lengthy periods.16 Government officials and private citizens monitor family relationships and behavior—both public and private—and report alleged misconduct for criminal justice enforcement.17 This sweeping expansion has altered family autonomy and undercut family stability.
As with most aspects of the criminal justice system, the expansion has disproportionately and negatively impacted Black communities and social networks, including Black families.18 In comparison to their population numbers, Blacks are disproportionately involved in every aspect of the criminal justice and related systems, such as the child welfare and juvenile justice systems.19 Blacks are more likely to be surveilled, have contact with the system, be arrested, be convicted, and be confined or supervised for lengthier periods of time.20 This disproportionate experience of criminal justice is felt not simply by individual Black citizens. Black families are inevitably impacted by the criminal justice experience of family members.21 Additionally, the family as a unit can be the target or subject of criminal justice oversight.22
Despite these pervasive trends, with limited exception, legal scholars mostly have neglected to explore the intersection of criminal law, family law, and racial justice. Meares, Roberts, and King have explored the effects of mass incarceration on Black social networks, including Black families.23 Roberts has explored the relationship
[Page 288]
between criminal justice and child welfare for Black mothers and families.24 Morrison has considered the racial aspects of intimate partner violence discourse and regulation.25 Crimmigration scholars have examined the impact of the merging of criminal and immigration laws on families, particularly Latino families who comprise the largest portion of the immigrant population.26 Finally, reentry scholars examining the relationship between offender reintegration and family life focus on Black families.27 Beyond these areas, though, scholars have not devoted attention to the impact of the myriad other aspects of criminal justice expansion that today encroach upon many aspects of Black family life. In short, criminal law, family law, and racial justice generally are examined in silos or at best in pairs.
However, the relationship between criminal justice and family and racial justice can no longer be ignored. A multitude of criminal justice policies and practices have many different and deep impacts on Black families.28 For example, consider the impact of community supervision on Black family life. Community supervision—also known as community-based corrections or community corrections—is a practice or program in which government agents supervise individuals in residential or community settings, not detention facilities.29 Community supervision includes pre-trial release of defendants, service of probationary sentences, and completion of parole or supervised release which take place after an individual
[Page 289]
completes a custodial sentence.30 As part of community supervision, courts and program officials impose conditions on supervised individuals, including participation in social service programs, travel restrictions, curfews, and electronic monitoring.31 Agents and courts enforce compliance with these conditions by imposing sanctions for violations, including incarceration.32
Policymakers have offered community corrections as a panacea to mass incarceration, freeing both individuals and governments from the costs of confinement.33 Community supervision is not without cost, though, and may not be the ideal solution it is portrayed to be.34 Community supervision disrupts family networks and restructures families in ways that are counter to preferences regarding family autonomy, stability, and loyalty.35
Supervision officers approve or disapprove where an individual lives and with whom, and can restrict the ability of family members to socialize with each other.36 They make unannounced home visits and conduct warrantless searches of homes.37 Agents monitor whether or not supervisees are complying with obligations unrelated to their offense, such as familial and child support.38 To surveil and control individuals, officials gather personal family information collateral to the offense and rely on family members to report misbehavior.39 If ever an agent determines an individual is not in
[Page 290]
compliance with conditions, the agent can ask the court to incarcerate and remove the individual from family life.40
Community supervision represents only one instance in which the contemporary criminal justice regime impacts family law and racial justice. In the last several decades, criminal law has rewritten family law and family life, especially for Black families.41 This social and legal phenomenon demands intense scrutiny. This Article begins that effort.
The Article proceeds in four parts. Part I points out the lack of attention devoted to the intersection of criminal, family, and racial justice.42 As scholars have already explained, the historic link between racial and family justice has been erased from modern conceptions of family law doctrine and scholarship.43 Additionally, legal subjects that both impact family life and implicate racial justice issues have been cleaved off from family law discourse. The separation of racial justice from modern family law and scholarship is also related to the virtual exclusion of criminal justice from family justice conversations. With limited exception, modern family law and scholarship rarely examines its relationship with criminal justice or the role of criminal justice in family life.
Part II charts the terrain of the modern, wide-ranging criminal justice system.44 What began as the dramatic proliferation of criminal statutes has exploded into a breathtakingly broad criminal justice system that sanctions and surveils more individuals than ever, controls individuals by channeling them into overlapping enforcement regimes, ensnares juveniles from their earliest years, and has resulted in mass incarceration.45 This Part both generally maps the new criminal justice landscape and specifically identifies points
[Page 291]
of entry for criminal law into family life as well as the disproportionate impact of criminal justice on Black families.46
Part III uses community supervision as a case study to reveal the substantial way in which criminal justice intrudes into everyday family life.47 This Part begins by describing the practice of community supervision, including the various forms of supervision, numerical data, and the mechanics of supervision.48 This Part then specifically identifies how community supervision infiltrates family life and family autonomy and undermines family stability and loyalty.49 Conditions of supervision allow case officers to closely regulate family association, cohabitation, and living spaces; restrict familial relationships; and impose obligations on families that interfere with family caretaking functions.50 Modern approaches to supervision encourage officers to extract and leverage personal family information to...
