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Document Type

Article

Abstract

The criminal justice system has morphed dramatically over the last several decades, achieving more pervasive control over the lives of individuals than ever before. The expansion began with the proliferation of criminal statutes, generating the now well-known concept of over-criminalization. The expansion also encompassed increasing the range of possible sanctions for criminal misbehavior and creating overlapping enforcement regimes. 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. A product of the expansion has been mass incarceration; more individuals than at any point in American history are now housed in correctional facilities.

The Article proceeds in four parts. Part I points out the lack of attention devoted to the intersection of criminal, family, and racial justice. 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. 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. 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. This Part both generally maps the new criminal justice landscape and specifically identifies points of entry for criminal law into family life as well as the disproportionate impact of criminal justice on Black families.

Part III uses community supervision as a case study to reveal the substantial way in which criminal justice intrudes into everyday family life. This Part begins by describing the practice of community supervision, including the various forms of supervision, numerical data, and the mechanics of supervision. This Part then specifically identifies how community supervision infiltrates family life and family autonomy and undermines family stability and loyalty. 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. Modern approaches to supervision encourage officers to extract and leverage personal family information to control individuals and families.

In order to extend family law rules and norms to Black family life and ameliorate the impact of criminal justice on Black families, Part IV proposes that community supervision officers adopt a traditional human services approach to supervision rather than the current crime control model. Doing so will ideally soften the negative impact of this criminal justice practice on Black family life. The Article briefly concludes by calling on legal scholars to focus attention on the multiplicity of ways in which criminal law eliminates family law protections and norms for Black families.

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