Legal Commentary

Thanks to Tony Sebok, my attention was just adverted to United States v. Bueno, a recent  opinion by Judge Baer (SDNY) involving the sentencing of an irreplaceable caregiver. Bueno has 3 young kids and her husband was also convicted and sentenced, leaving no other available and willing caregivers. As a result, Judge Baer effectively (though unwittingly) implemented the time delayed sentencing idea that Ethan, Jennifer and I proposed in our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The book takes a relatively critical eye toward the idea that caregivers as such should receive sentencing discounts but when there are irreplaceable caregivers who commit crimes that warrant incarceration, that period of incarceration should occur after the caregiving vacuum is filled. In the Bueno case, Judge Baer basically deferred the custody and supervised release of Bueno for 3 years or until an alternative can be found. 

My own sense is that this is both too lenient and too harsh (although not terribly so). I would allow the delay to take place until the caregiving need is filled (ie., until the youngest current child is 18). But I would also place some modest restrictions on the liberty of Bueno during that period of delay so that  Bueno herself and others do not think she is able to enjoy a "windfall" based on the benefit created by the time-delay before sentencing. In other words the defendant would have to endure some extra sanctions to enjoy the benefit afforded by the delay in the sentence. Of course, if the conditions associated with supervised release  could be imposed prior to the incarceration, then the defendant is really only engaged in some time-shifting, and perhaps that's acceptable because the state itself recognizes the social benefit of that shift and that the principal beneficiaries of that are innocent third parties, not the defendant himself or herself.

In any event, this view might be somewhat controversial. Professors Ristroph and Murray seem to think (per their critique in the YLJ) that obligations to care are basically fungible with obligations to serve time. We reject that argument in no uncertain terms in our reply, which you can find here. Are we right?