NCJ Number
144570
Journal
Yale Law Journal Volume: 101 Issue: 8 Dated: (June 1992) Pages: 1895-1900
Date Published
1992
Length
6 pages
Annotation
This article examines the trend toward using a hodgepodge of criminal, civil, and administrative sanctions to deter and punish white-collar crime and the potential dangers of this trend in undermining the rights of defendants.
Abstract
Civil processes and sanctions that are often more punitive and equally as stigmatizing as criminal processes have emerged in the government's efforts to combat white- collar crime. Civil sanctions, however, carry with them fewer procedural protections for the defendant than do criminal sanctions. The burden of proof is by a preponderance of evidence rather than beyond a reasonable doubt; civil sanctions may be instituted by private parties without being screened by a public prosecutor who serves as surrogate for the public interest; civil suits may also be tried by a judge rather than a jury. The challenge confronting the custodians of the legal system is to separate the several strands of the sanctioning process in white-collar crime. The sanctioning process must recognize that each civil and criminal remedy is part of a network of sanctions designed to control deviant behavior; there must be screening mechanisms to determine which sanction should be brought to bear, and by whom, so as to make law enforcement more effective overall; hybrid procedures must be created that are appropriate to each of the hybrid processes. If these efforts are not undertaken, there is a risk that the stigma and sanctions associated with "crime" will be imposed in both civil and criminal processes on persons who are not culpable in any accepted sense of this term. The moral force of the "criminal" sanction will thus be dissipated, and many more people will suffer unjust treatment. 12 footnotes