Redrawing the Criminal-Civil Boundary [Special Issue: A New Agenda for Criminal Procedure]

This essay explores the effect of the destabilization of the criminal-civil divide upon constitutionally-required procedural protections. To maintain a system that grants special procedural protections to defendants in criminal proceedings, we must be able to distinguish public criminal actions from private civil ones. This has become unworkable with the increase in hybrid actions, such as state statutes that mandate that exemplary damages in civil tort actions be shared with the government, state and federal statutes that mandate victim restitution as part of a criminal verdict, and state and federal statutes that allow a government plaintiff to use the civil setting to sanction individuals and entities for conduct that is also proscribed by the criminal law. The Court has long struggled with the last example, providing inconsistent opinions both as to whether the imposition of punishment is the feature which marks a given proceeding as criminal for the purpose of procedural protections, and what it means for a given sanction to be punitive. For a brief period between 1989-1994, the Court attempted to draw independent and principled distinctions between punitive and non-punitive sanctions, and appeared willing to impose select criminal procedural protections in otherwise civil proceedings. However, more recently the Court has abandoned this effort. In a series of cases heard during the 1995-1997 terms, the Court has chosen to simply bow to the legislative labeling of an action as criminal or civil, regardless of the sanction imposed. Moreover, the Court has adopted an all-or-nothing approach to proceedings--they are either entirely civil and merit no criminal procedural protections, or they are entirely criminal and merit the full array of criminal procedural protection listed in the Bill of Rights. I predict that these decisions will have the following two effects: (1) an increasing number of formerly punitive sanctions imposed in criminal proceedings will be transformed by legislatures into remedial sanctions appropriate for civil fora, and new statutes will receive the civil appellation as a matter of course; and (2) this will lead to surprising developments in Fourth, Fifth, and Sixth Amendment jurisprudence. Unfortunately, a return to the neat criminal-civil dichotomy of days gone by is both theoretically and practically impossible. I conclude that our best hope of protecting against a slow but steady shrinkage in the scope and content of procedural protections we have come to rely upon when important interests are at stake is to accept compromise procedures in hybrid actions.