Civil and Criminal Divide

Of course, one would be hard pressed to find many bright-line distinctions, in law or elsewhere, that can be maintained with absolute clarity. The complexity of the world in general, and the legal world in particular, demands a certain degree of flexibility, particularly in sharp, binary divisions. However, the fuzziness at the edges of the civil/criminal distinction has definitely been increasing, and at an accelerating rate, throughout the last century and particularly throughout the last few decades. The causes of this accelerating increase are themselves complex and inter-dependent. They can usefully be divided into conceptual and institutional challenges to the civil/criminal distinction, each of which, in turn, has promoted and reinforced the other.

The two most significant conceptual or intellectual challenges to the civil/criminal distinction have their roots in the nineteenth century, but have become much more influential in the last two to three decades. The first big conceptual challenge has been the growing dominance of consequentialism or utilitarianism in legal thought—what has come to be known in recent times as "law and economics." Economic analysis of law has fundamentally recast the nature of civil and criminal sanctions in a way that portrays them as related parts of a unitary scheme of state control of private behavior. The clear, strong version of the civil/criminal distinction would make a sharp distinction between (private) compensatory justice and (public) retributive justice. However, the advent of utilitarianism and its application to jurisprudence in the eighteenth and nineteenth centuries—beginning with the famous work of Jeremy Bentham and Cesare Beccaria—led to a reconception of the civil sanction as forward-looking in addition to backward-looking, able to shape future choices through deterrence in addition to restoring some preexisting status quo. At the same time, economic analysis of criminal law also emphasized its deterrent function, in addition to its nonconsequential justification in placing blame and giving offenders their "just deserts." Indeed, the strong economic view of criminal law would reject the moral dimension of the criminal law altogether and conceptualize it as entirely derivative of civil law, offering a sanction when civil remedies are unavailing, primarily in the case of insolvent defendants. Economic analysis of law thus portrays civil and criminal law not as separate or independent, but rather as complementary means of promoting a unitary system of "optimal sanctioning." This convergence on deterrence as the unifying rationale of civil and criminal law presents a compelling intellectual challenge to the traditional civil/criminal distinction.

The second big intellectual challenge to the civil/criminal distinction has come not from economics, but rather from the cognitive and behavioral sciences. Just as economic analysis of law has blurred the distinction between civil penalties and criminal punishments with its focus on deterrence in both the civil and criminal contexts, so too the developing science of human behavior has made less salient the distinction between treatment and punishment with its increasing emphasis on incapacitation (rather than rehabilitation) in both the civil and criminal contexts. In the nineteenth century—the century of the invention of the prison, the asylum for the mentally ill, and the home or school for the juvenile delinquent—there was widespread belief in rehabilitation as a plausible goal of all types of incarceration, though in quite different ways. Prisons were thought to have the potential to rehabilitate offenders through silence, work, discipline, and penitence (hence the name "penitentiary"). Prisoners were to wear degrading uniforms (the prisoner's "stripes"), walk in lockstep, and work, eat, and pray in silence. On the other hand, asylums for the mentally ill were thought to rehabilitate through a model of medical "treatment" and "cure," and homes or reform schools for juvenile delinquents were thought to rehabilitate by providing a family surrogate (hence the name "home"). The twentieth century saw a waning of this confident faith in the malleability of human character and behavior, especially by governmental intervention with such "total institutions" as the mental hospital, the juvenile home or reform school, and the prison. This waning of faith led to the widespread deinstitutionalization of the mentally ill in the 1960s and 1970s and to a de-emphasis on rehabilitation for those among the mentally ill who remained incarcerated. At the same time, the goal of rehabilitation was also de-emphasized for juvenile delinquents and for incarcerated prisoners of the criminal justice system. Instead, all of these institutions—the putatively "civil" institutions of mental hospital and juvenile home or reform school, and the "criminal" institution of prison—all emphasized a common goal: protecting society by incapacitating the "dangerous." In the twentieth century, it thus became less compelling to distinguish the "mad" in need of treatment from the "bad" in need of punishment; rather, it was more important to identify the "dangerous" in need of segregation. This convergence on dangerousness as the key determinant of incarceration parallels the convergence on deterrence as the key rationale for sanctions; both convergences threaten the idea of separate and distinct civil and criminal realms.

These two conceptual or intellectual shifts have been paralleled by two major shifts in the structure and uses of legal institutions. First, the twentieth century saw unprecedented growth in what has come to be known as "the administrative state"—the regulation of vast spheres of life by administrative agencies, which often have broad sanctioning authority that is both civil and criminal. This organizational structure challenges the civil/criminal distinction in two ways: it casts the government in the role of civil plaintiff as a regulatory strategy, and it merges civil and criminal authority in a single administrative unit. This structure thus reinforces the deterrence theory that is one of the primary conceptual challenges to the civil/criminal distinction and is, in turn, reinforced by that theory. Second, existing forms of "civil" incarceration have come to resemble much more the dominant form of "criminal" incarceration—the prison. In the 1970s, the juvenile justice system saw a shift away from indeterminate, rehabilitative commitment of delinquents, toward determinate, graduated commitments graded according to the seriousness of the juvenile's offense. In addition, during the last few decades, legislatures have made it progressively easier to commit juveniles to long periods of incarceration and to try juveniles as adults in criminal court. On the mental health side, legislatures have progressively narrowed the scope of the insanity defense, and some jurisdictions have even formally authorized verdicts of "guilty, but mentally ill" in order to ensure the long-term incarceration of those among the mentally ill who demonstrate their dangerousness through the commission of serious crimes. In addition, numerous jurisdictions have created new forms of "civil" incarceration to incapacitate dangerous offenders who might otherwise escape long-term criminal custody. The most common example of this development is the recent resurgence of interest in the civil commitment of sex offenders, especially of those who are about to be released from criminal confine, as reflected in "sexually violent predator" statutes like the one upheld by the U.S. Supreme Court in Kansas v. Hendricks. These doctrinal and institutional trends subordinate the distinction between "mad" and "bad" to the need for protection from the "dangerous." These trends thus reinforce—and are reinforced by—the conceptual change in perceptions about the possibility of rehabilitation.