Civil and Criminal Divide

Despite such confident pronouncements of the clarity of the civil/criminal distinction, and despite the ease with which lawyers can delineate (or at least recognize) the clear, strong version of the distinction, even casual observers of the current U.S. legal regime would note at least the following five obvious qualifications.

First, the notion of civil actions as "private" and criminal actions as "public" is most clearly challenged by the many instances in which the government is cast in the role of plaintiff in civil suits. Starting with the New Deal policies of the 1930s, accelerating in the second half of the twentieth century, and continuing to the present, the federal government has been cast in the role of enforcer of a growing body of regulatory law, and this enforcement often takes the form of "civil enforcement actions" by government agencies against individuals or entities. For example, federal agencies such as the Environmental Protection Agency (EPA) and the Security and Exchange Commission (SEC) often bring civil suits, either alone or in conjunction with criminal charges, in order to address violations of extensive federal regulatory regimes in their areas. Such lawsuits challenge the paradigm of the civil suit initiated by a private party to redress individual injury. In addition, the government is also styled as a civil plaintiff when it seeks a delinquency determination against a wayward youth or when it seeks a civil commitment order against someone thought to be mentally ill and dangerous. Such cases demonstrate conclusively that civil lawsuits are not only an avenue of private redress, but also an important mode of governmental regulation.

The flip side of this qualification is the growing role of private parties in criminal actions. The victim's rights movement has called for a greater voice for individual victims in prosecutorial decision-making in criminal cases. The movement seeks rights for victims to be notified about the progress of criminal cases, to be present at all judicial proceedings, to have a say in plea bargaining, and to be heard at sentencing. This call for growing participation by victims in the criminal process necessarily qualifies the concept of a criminal action as a wholly public one brought by the state on behalf of the collective; rather, it seeks to render the criminal process also as a mode of private redress or retribution on behalf of individual victims.

Second, and relatedly, the strong version of the civil/criminal distinction is likewise challenged by civil remedies that look "punitive" and by criminal punishments that look "remedial." As some early nineteenth-century courts recognized, "punitive" damages—civil awards beyond the amount necessary to make a plaintiff whole—are meant to deter future offenses rather than to compensate plaintiffs for injuries. The acceptance of punitive damages in the American tort system thus sits uneasily with the distinction between compensatory and retributive justice upon which the strong version of the civil/criminal distinction relies. Similarly, the growing use of civil fines and forfeitures by regulatory enforcement agencies as well as the growing use of civil forfeiture by ordinary criminal enforcement agencies, especially in drug cases, have begun to create what some scholars have called a "middle ground" between civil and criminal sanctions. In this middle ground, governmental agencies use putatively "civil" sanctions in ways that parallel, often intentionally, criminal punishments, with the goal of deterrence paramount, and the goal of compensation secondary or nonexistent. Similarly, the use of noncriminal incarceration for juveniles and the dangerous mentally ill likewise imports nonremedial goals into the civil justice system—this time incapacitation or rehabilitation—in settings that are strongly reminiscent of prisons. On the flip side, it is not unusual for criminal courts to order, as a part of a criminal defendant's punishment, that the defendant make restitution to the victim. The victims's rights movement urges greater resort to such awards, just as they urge an enhanced procedural role for victims in criminal cases. This use of the criminal justice system to promote compensation, like the use of civil sanctions to deter or incarcerate, must qualify the purported bright line between civil remediation and criminal punishment.

Third, the strong version of the civil/criminal distinction sees civil wrongs as unintentional, primarily negligent, while criminal wrongs are intentional, the product of a mens rea or "guilty mind." Once again, while this generalization contains some truth, there is more overlap in culpable mental states in civil and criminal cases than the strong version suggests. The general tort standard is one of negligence—that is, failing to act as a reasonable person would act under the circumstances, whether or not the harm caused was inflicted intentionally or unintentionally. Moreover, American tort law permits a fair amount of "strict liability"—that is, liability without regard to any fault at all, such as manufacturer's responsibility for faulty products even when they acted reasonably in producing and distributing them. But in addition to these standards of negligence and strict liability, American tort law also contains a substantial category of "intentional" torts, which require a more culpable mental state and thus move closer to the criminal category of mens rea. As for criminal cases, in general it is true that ordinary tort negligence is commonly deemed insufficient for criminal liability. Most criminal statutes that use negligence as a culpable mental state rely on the common law concept of criminal negligence, which denotes a greater deviation from reasonableness than mere tort negligence. Criminal negligence is often described as "gross" or "wanton" negligence; the Model Penal Code describes it as a "gross deviation" from the standard of care that a reasonable person would observe (MPC § 2.02 (2) (d)). However, while disfavored, ordinary tort negligence is occasionally incorporated into criminal statutes. Moreover, even strict liability is no stranger to American criminal law. The doctrine of felony murder, which treats even unintentional killings during the course of a felony as murders, is the oldest and most famous form of strict criminal liability. But the twentieth century also saw the proliferation of so-called public welfare offenses, in which strict liability criminal sanctions are imposed for various kinds of unintentional regulatory offenses like the mislabeling of drugs or the adulteration of food offered for sale. Thus, there is no clear or absolute demarcation between the mental states sufficient for civil as opposed to criminal liability.

Fourth, the strong version of the civil/criminal distinction posits two distinct procedural systems, one for civil cases and one for criminal. Once again, there is a general truth here that needs to be qualified. It is true that there are separate rules of procedure for civil and criminal cases and that the federal constitution and most state constitutions contain a fairly long list of special procedural rights reserved for criminal cases, such as the protection against double jeopardy, the prohibition of ex post facto laws, the burden of proof beyond a reasonable doubt, the provision of free legal counsel, the exclusion of unconstitutionally seized evidence, the privilege against self-incrimination, and the proscription of cruel and unusual punishments and excessive fines. But some putatively civil suits have been held to require some or all of the special procedural regime reserved for criminal cases. Two paradigmatic examples: The Supreme Court held that a putatively civil statute imposing the sanction of forfeiture of citizenship in fact constituted punishment that required the application of the entire special criminal procedural regime in the federal constitution (Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). In addition, the Court held that juvenile delinquency proceedings must receive almost all of the special constitutional criminal procedural protections with the exception of trial by jury (In re Gault, 387 U.S. 1 (1967)). Beginning in the late 1980s, there has been an explosion of litigation about whether civil fines and forfeitures or new forms of incapacitative incarceration are subject to any or all of the special criminal procedural protections. (See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997), holding that the double jeopardy prohibition does not apply to the indefinite civil commitment of "sexually violent predators" after the conclusion of their prison terms; United States v. Ursery, 518 U.S. 267 (1996), holding that the double jeopardy prohibition does not apply to civil forfeitures imposed in addition to criminal punishment; Austin v. United States, 509 U.S. 602 (1993), holding that the Eighth Amendment's prohibition of excessive fines applies to civil forfeitures that are "punitive"; United States v. Halper, 490 U.S. 435 (1988), holding that the double jeopardy prohibition does apply to noncompensatory civil fines imposed in addition to criminal punishment.) This litigation explosion has led a number of scholars to urge a procedural "middle ground" to accompany the "middle ground" of sanctioning that lies between "pure" civil and criminal sanctions.

Fifth and finally, the strong version of the civil/criminal distinction suggests that the two sorts of wrongs give rise to distinctive legal responses, with money damages being the paradigmatic civil remedy and imprisonment being the paradigmatic criminal punishment. At an earlier time in American history, before the widespread use of incarceration, criminal penalties were distinctive in that they were usually capital or corporal. However, the nineteenth century saw the waning of the gallows, the whipping post, and the stockade, and the concomitant growth of prisons and monetary fines as the predominant forms of criminal punishment. These forms of punishment are not as distinct from civil remedies because incarceration is widely used as a civil restraint (for juvenile delinquents, pretrial detainees, pre-deportation detainees, and the civilly committed), and monetary payouts are ubiquitous in the civil system as either damages or fines. Thus, there is more overlap between criminal and civil sanctions than the strong version of the distinction would recognize.

In sum, the clear, strong version of the civil/criminal distinction is only generally or approximately true; it must be qualified by important overlaps—overlaps that are largely, though not exclusively, the product of the twentieth century.