The Civil Case at the Heart of Criminal Procedure: In re Winship, Stigma, and the Civil-Criminal Distinction

64 Pages Posted: 28 Jun 2010 Last revised: 16 Aug 2011

Date Written: June 23, 2010


In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can expose an individual to the same or greater deprivation of liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to formally criminal cases? Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?

One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.” Apprendi is not, however, just a Sixth Amendment case. Its “beyond a reasonable doubt” requirement comes from a formally civil case, In re Winship, which itself explicitly rejected the idea that civil labels could insulate a state from the heightened standards of proof required under due process. Because part of Apprendi’s rule comes from a civil case, I argue that Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases. To determine the limits of Apprendi’s application, one must instead return to the interests that both Winship and Apprendi identified as worthy of protection: the imposition of stigma and the deprivation of liberty.

This Article proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety. Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma as one of its concerns, might provide a more meaningful way to separate punishment from risk management. This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system. It would also provide some judicial oversight of so-called collateral consequences, which use formally civil statutes to impose significant liberty restrictions based on predicate criminal behavior. This Article examines the specific example of civil commitments for Sexually Violent Predators (SVPs), but the arguments also apply to any civil restrictions placed on offenders or ex-offenders.

NOTE: This article’s original title was Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure. I mention that only to say that if you’ve followed a citation to that article, you’re in the right place.

Keywords: sex offenders, SVP, SVP laws, civil, criminal, Winship, Apprendi, due process

Suggested Citation

Ball, W. David, The Civil Case at the Heart of Criminal Procedure: In re Winship, Stigma, and the Civil-Criminal Distinction (June 23, 2010). American Journal of Criminal Law, Vol. 38, No. 2, p. 117, 2011. Available at SSRN:

W. David Ball (Contact Author)

Santa Clara School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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