PARADIGMS LOST: THE BLURRING OF THE CRIMINAL AND CIVIL LAW MODELS, AND WHAT CAN BE DONE ABOUT IT

• NCJ Number: 144569
• Journal: Yale Law Journal Volume: 101 Issue: 8 Dated: (June 1992) Pages: 1875-1894
• Author(s): J C Coffee Jr
• Date Published: 1992
• Length: 20 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

In comparing the use of criminal and civil proceedings to sanction injurious behavior, the author contrasts his views with those of Ken Mann.

Abstract

Part I surveys the recent expansion of the criminal law into domains previously thought to be civil in character. Part II assesses whether or not conceptual distinctions between civil and criminal deterrence are still possible once it is acknowledged that tort law has a preventive purpose. Part III considers the behavioral effects of broadly empowering governmental enforcers to choose between civil and criminal sanctions, as Professor Mann proposes. Part IV then tentatively assesses what incremental steps might be taken to re-establish a civil/criminal border. The author agrees with Mann's goal to "shrink" the domain of the criminal law by expanding punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law to achieve punitive purposes. The author fears, however, that the promotion of the blurring of the differences between civil and criminal law will encourage governmental agencies to fuel the growing tendency to use criminal proceedings to sanction behavior that has traditionally been subject to civil sanctions. Thus, Mann's effort to bring civil proceedings closer to civil proceedings may have the opposite effect from what he intends. The author favors the use of incentives to induce government regulators to use civil instead of criminal penalties. This can be done by maintaining the less costly use of more informal procedures in civil proceedings rather than bringing them closer to the due process rules that govern criminal proceedings. The basic strategy should be to preserve or create a cost differential that favors civil penalties, so that public enforcers will opt for their use. The maintenance of informal civil proceedings, however, requires that civil penalties not be so severe as to amount to the functional equivalent of criminal penalties. Other means of encouraging the use of civil penalties are also discussed. For Mann's article, see NCJ-144568. 47 footnotes