Civil and Criminal Divide

The structure of the American legal system presupposes a clear distinction between civil and criminal wrongs in that the system provides distinctive legal processes and distinctive legal responses to the two kinds of wrongs. The clearest, strongest version of the civil/criminal distinction goes something like this: A civil action is brought by a private, injured party to seek compensation for an unintentional harm unlawfully caused by another party, whereas a criminal action is brought by the state to punish a defendant for a deliberate offense against the community. Civil actions are pursued in civil courts and are governed by rules of civil procedure and by a few special constitutional provisions relating to civil cases, whereas criminal actions are pursued in criminal courts and are governed by rules of criminal procedure and by a larger number of special constitutional provisions relating to criminal cases. Civil actions give rise to distinctive civil remedies like money damages or injunctions, whereas criminal actions give rise to distinctive criminal punishments like imprisonment or the death penalty.

As is the case with most generalities, in law and everywhere else, there is some truth to the clear, strong version of the civil/criminal divide, but the reality is much less clear and much more complex. Moreover, throughout the twentieth century, the movement was consistently away from clarity and toward complexity, even confusion, of the civil/criminal distinction. This destabilization of the distinction has taken place on both a conceptual and an institutional level; that is, the theoretical rationales for the distinction have been called into question, and the institutional structures that promoted the distinction have been altered. This entry will explore the many ways in which the clear, strong version of the civil/criminal distinction needs to be qualified and offer some explanations for the acceleration of these qualifications in the recent past.