Unformatted text preview: The Criminal Law-Civil Law
Distinction CRJU E491P, Police Liability
Spring 2011, Mr. Smith “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
Oliver Wendell Holmes Why Distinguish?
Why Why should a legal system distinguish between criminal and civil cases?
Why not just have a "law of wrongs?” Under a “law of wrongs” system, we, as members of society, could either rely on government officials to enforce the law or permit private citizens, such as victims or their families, to bring an offender to justice. What difference does it make that we have distinct, but related, civil and criminal legal systems? Lex Talionis
Lex While, historically, all cultures have had some system of social regulation and conflict resolution, the criminal law today is a modern phenomenon in that it has emerged as a form of retribution, and sometimes conflict resolution, administered by the State, not by individuals. The earliest legal systems almost universally embodied the concept of lex talionis, the “law of retaliation." Lex talionis had as its core principle the idea of equal and direct retribution, or in the words of the Hebrew scriptures, "an eye for an eye." It viewed the law’s basic function as exacting revenge and retribution for wrongs that had been committed. The Code of Hammurabi
The The Code of Hammurabi Based on the principle of equal and direct retribution and the concept of retributive violence, the intention was to make enforcement of the law more consistent.
The Code, which did not distinguish between civil and penal sanctions, consisted of a Prologue, 282 “Codes” and an Epilogue. Sample Code Provisions “If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.”
“If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.” The Law Divides
The The Emergence of Modern Criminal Law As societies became progressively more structured, civilizations began to distinguish between wrongs which affected society collectively and those which affected citizens individually. Prior to the Norman Invasion of England in 1066, acts which we today view as “crimes,” such as theft, assault and robbery, were treated simply as “wrongs” and created an obligation on the part of the wrongdoer to make monetary compensation to the victim through the payment of damages.
Once constitutions were enacted, governments were established and police services were offered for the protection of citizens and the “public peace.” The role of the criminal wrong, as a violation of the sovereign’s authority, requiring a separate remedy, began to emerge. Thus, violations of this “criminal law” came to be enforced by the government, not individuals. Criminal Law in America
Criminal Although a wrongful act may injure a specific victim, what will make the act a crime is the violation of public peace, order, or societal norms, in addition to the injury suffered by the victim. Where the wrongful act constitutes a criminal act, punishment will be administered by the government which, itself, is incapable of being a victim of revenge because of its infliction of the punishment. This construct avoids the potential for mutual and reciprocal revenge, inherent in lex talionis, which has the potential to tear the fabric of society apart. Civil-Criminal Distinctions
Civil-Criminal Once the criminal law emerged as a separate legal concept, by necessity, socalled “noncriminal” matters became relegated to the other form of the law: the civil law.
The difference between civil law and criminal law has traditionally hinged on two very different objectives: redress or punishment. The object of civil law is, traditionally, the redress of wrongs by compelling compensation or restitution. The wrongdoer only suffers to the extent that he must make good for the injury he has inflicted. The person who has suffered, the victim, obtains a benefit or avoids a loss via the compensation. The focus is primarily on the victim.
In criminal cases, to the contrary, the purpose of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit the same or similar crimes, to reform him if possible and, perhaps, to satisfy the public sense that wrongdoing ought to be met with “retribution.” The focus is primarily on the offender. The Similarities
The Their differences notwithstanding, the criminal law and civil law share many commonalities. In many “civil” cases, an injured party may seek to “punish” a wrongdoer by having “punitive” damages assessed against him. Also, in many “civil” cases, wrongdoers face the possibility of being jailed, or having their property forfeited, for their failure to comply with a civil obligation (e.g. contempt). How do we distinguish between criminal and civil proceedings when both may seek to deter and punish the antisocial behavior of a person?
Is it important to evaluate the “societal stake” in the outcome? Is This a Workable Approach?
Is Identify punishments associated with the criminal law. Focus on the condemnation or stigma associated with conviction for a criminal offense. If a fine or incarceration is involved, the behavior is criminal. Any punishment that imposes public condemnation or a public stigma upon a person is criminal in nature. View the criminal law as primarily aimed at inflicting punishment and the civil law as primarily aimed at facilitating regulation and compensation. If the purpose of the legal proceeding involved is to inflict punishment, then the proceeding is criminal. “Sanction Equivalency” Should criminal punishments to be considered more severe than civil sanctions?
What if there are equivalent criminal punishments and civil sanctions for the same wrongful act? Is the criminal punishment always more “damaging” to the wrongdoer? Example: “A” fails to pay courtordered child support as required and owes more than $3,000 in past due support. Criminal punishment (S.C. Code section 63520) Guilty of a misdemeanor; imprisoned for a term not exceeding one year; fined not less than three hundred dollars nor more than one thousand five hundred dollars or both. Civil sanction (S.C. Code section 633620) Adult found in contempt of court; punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them; not to exceed imprisonment for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them. “Criminal Stigma” Are some civil wrongs condemned more seriously than criminal acts?
Is how the act is classified what determines the “stigma” assigned to a wrongful act, or do criminal acts always carry a greater stigma with the public: a criminal stigma? Example: Which carries a greater potential public stigma? The negligent, but not criminal, discharge of 10.8 million gallons of crude oil into a pristine Alaskan marine environment by a tanker Captain, for which the company owning the tanker was originally ordered to pay $287 million in compensatory damages and $5 billion in punitive damages. The intentional smuggling of a box of Cuban cigars into the United States, for purposes of resell, by a college student, for which he faced a sentence, upon conviction, of a $250,000 fine and up to 10 years in prison. “Civil Stigma” Termination of Parental Rights Involuntary Commitment One is deprived of the right of association and involvement with one’s own child.
One is deemed mentally incompetent and committed to an institution for an indeterminate period of time because deemed a danger to self.
One is deemed a sexual predator and after having served a criminal sentence is confined to an institution for an indeterminate period of time because deemed a danger to society. Not Guilty by Reason of Insanity (NGRI) One is determined not to be criminally responsible for a wrongful act but is confined to an institution for an indeterminate period of time until deemed “sane” by the State. How is the Stigma Known?
How Criminal arrests and convictions are matters of public record, as, generally, are all aspects of the criminal trial. Persons who have already been convicted and served their sentence for certain “sex crimes” are, nonetheless, listed permanently on a publicly accessible “sex offender registry.” Civil proceedings are not always public and, often, what may be considered a “stigma” will not be publicly known. Juvenile proceedings involving “criminal” conduct by a minor (i.e. delinquency proceedings) are not matters of public information.
Actions involving persons who commit acts of abuse or neglect towards children may, or may not, become matters of public record, depending upon whether the act is handled criminally, or civilly. The fact that a person’s name appears on a Central Registry of Abuse and Neglect is knowledge limited to persons with a “need to know” in either case. “Legislative Purpose to Punish” Is the act considered criminal based upon what purpose the legislature intended in enacting the underlying law?
What happens if an enactment serves “criminal” and “civil” objectives, to include deterrence and protection, among others? Example: Possession of Drug Paraphernalia (S.C. Code section 44
53391) Person found guilty of violating section is subject to a civil fine; imposition of the fine does not give rise to any disability or legal disadvantage based on conviction for a criminal offense. How does the nature of the “judgment” affect the classification? Criminal judgments involving incarceration can be suspended contingent upon certain required behavior or actions by the person subject to the judgment, but can be reinstated fully by the court.
Civil judgments are executed immediately, subject only to the expiration of the judgments effect (e.g. 10 years) if not satisfied. Kennedy v. Mendoza-Martinez
Kennedy If it is not immediately clear as to whether the offense is criminal or civil, the U.S. Supreme Court, in 1963, stated that seven factors must be evaluated about the act:
(1) Does its sanction involve affirmative disability or restraint;
(2) Has it historically been regarded as punishment;
(3) Does it come into play only on a finding of scienter;
(4) Does it promote the traditional aims of punishment retribution and deterrence; (5) Is the underlying behavior already a crime; (6) Is an alternative purpose assignable to it: and (7) Does it appear excessive in relation to the Why Does It Really Matter?
Why Criminal actions have potential severe longterm impact. Criminal records, except in limited circumstances, are permanent and have severe impact on public and personal opportunity.
Criminal convictions for some offenses may permanently disqualify those convicted from employment and may dictate the specifics of where they may live. The protections afforded in criminal cases are substantially greater than in civil cases. Protections in criminal cases are often afforded at the expense of the public, whereas civil protections are the financial responsibility of the victim (e.g. legal representation). The Problem of Contempt
The Contempt is the power of a court to punish a person who does not obey the court’s order.
Contempt can be classified as either “criminal,” also known as “punitive,” contempt or “civil,” also known as “remedial,” contempt. One found to be in contempt of a court’s order is not being punished for the commission of a criminal or civil act against a traditional “victim” but, instead, for commission of a criminal or civil act against the court. In other words, a contemnor (i.e. a person who is held in contempt) is being punished for not “playing by the rules of court.” Contempt: Civil vs. Criminal
Contempt: Criminal contempt arises where the court punishes a person for the person’s past acts in violation of the court’s order. Example: A is released from the detention center on bond a condition of which requires that A not have any contact with B, the victim. A calls B on her cell phone and threatens her if she shows up at his trial. B is held in contempt by the judge for violating the conditions of his bond and sentenced to 30 days in jail. Civil contempt arises where the court directs a person to comply with its order in the future or be punished for the failure to comply. In civil contempt cases, the person always has the ability to gain his freedom by complying with the court’s order. Example: A owes past due child support in the amount of $5,000 but refuses to pay. At a hearing before the Family Court, the judge gives A the option of paying the full amount of the past due support or spending 6 months in jail. If A is committed to jail because he does not pay, he can gain his freedom at any time before the 6 months is up by paying the $5,000. Hicks v. Feiock
Hicks In a 1988 decision, the U.S. Supreme Court stated that the test for distinguishing between criminal (punitive) and civil (remedial) contempt lies in the character of the relief the proceeding will afford: If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period."
If the relief is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. Turner v. Rogers (2011)
Turner Currently before the U.S. Supreme Court on a writ of certiorari to the S.C. Supreme Court. Oral argument date has not yet been set.
The central question hinges on whether a person held in civil contempt by a Family Court judge for failing to pay child support and sentenced to imprisonment for a period of a year was entitled to be represented by an attorney at no charge. In a criminal case, the right to counsel would be guaranteed.
Was the Family Court’s sanction punitive? Or was it merely rehabilitative? ...
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- Spring '11
- criminal law, lex talionis