NCJ Number
144571
Journal
Yale Law Journal Volume: 101 Issue: 8 Dated: (June 1992) Pages: 1901-1908
Date Published
1992
Length
8 pages
Annotation
This article identifies and assesses three types of "middleground" proceedings between civil and criminal law.
Abstract
This response to Kenneth Mann's essay on the establishment of a "middleground" of procedure between criminal and civil law first highlights definitional issues that have flawed Mann's analysis and proposals. Part II outlines three types of middleground innovations between civil and criminal law and argues that the type of innovation chosen is a significant element in the calculus of the due process standards that should be imposed on governmental action. The three distinctions between types of middleground innovations are the distinction between middleground criminal sanctions and innovative civil sanctions, the distinction between civil sanctions designed as alternatives to criminal processing and those meant to supplement the criminal process, and the distinction between administratively delivered and judicially determined civil sanctions. An understanding of this diversity of middlegrounds clarifies the issues involved in choosing procedural standards for punitive civil sanctions. Part III suggests that the growth of administrative government and the need for administrative agencies to control their own enforcement agendas are the dominant reasons for the evolution of punitive civil sanctions at the Federal level. Part IV suggests that as the number and kind of criminal sanctions expand, the case for allowing punitive civil remedies rests on the comparative advantage of agency- managed enforcement efforts. For Mann's essay, see NCJ- 144568. 16 footnotes