What is Punishment? The Case for Considering Public Opinion Under Mendoza-Martinez
47 Pages Posted: 2 May 2014 Last revised: 15 Oct 2016
Date Written: April 29, 2014
The Framers considered the Constitution’s Ex Post Facto Clause, which bars retroactive punishments, to be one of the most important safeguards of liberty. However, the threshold question of what constitutes punishment for Ex Post Facto purposes has not always proven easy to answer. While legislatures are constrained from enacting statutes that impose new criminal penalties retroactively, they have power to pass civil, regulatory laws that may incidentally burden people who have already been convicted of crime and have completed their sentences. Thus, a central question in ex post facto cases is whether a statute is punitive or regulatory. This question has become increasingly important in recent years as a result of the rash of ostensibly regulatory laws aimed at protecting the community from sex offenders, who are among the most reviled, feared and marginalized people in society.
Courts attempting to determine whether a particular sanction imposes punishment use a two-pronged test. Under the first prong, courts initially consider whether the legislature clearly intended the statute to be punitive. If so, then the statute is deemed punitive and cannot be applied retroactively. If the court determines that the legislature intended the statute to be civil and non-punitive, then the court must determine whether the effect of the statute is nonetheless punitive by the “clearest proof.”
In Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the Supreme Court articulated a list of seven non-exhaustive factors to guide the analysis of whether a sanction is punitive in effect: (1) whether the statute imposes an affirmative disability or restraint; (2) whether the resulting sanction or burden has historically been regarded as punishment; (3) whether the statute “comes into play only on a finding of scienter;” (4) whether the statute promotes retribution and deterrence, traditional aims of punishment; (5) “whether the behavior to which it applies is already a crime;” (6) whether the statute is rationally connected to an alternative purpose other than punishment; and (7) whether the statutory sanction or burden appears excessive in relation to the alternative purpose. The Mendoza-Martinez framework has been criticized on a number of grounds, including that it leads to unprincipled, results-oriented decisions. Despite its flaws, there is no indication that the Supreme Court will abandon the Mendoza-Martinez framework. Accordingly, rather than argue, as others have done, that the Mendoza-Martinez test be jettisoned in its entirety.
This article proposes a novel prescriptive remedy for improving Mendoza-Martinez-punishment determinations allowing courts to consider the public’s opinion about whether a sanction is punitive in effect. Although this remedy will not remedy all of Mendoza-Martinez’s ills, it nonetheless will improve the punishment determinations courts make by injecting a dose of common sense into the analysis of what is, or is not, punitive.
Keywords: public opinion, ex post facto, punitive, retroactive punishment, Mendoza-Martinez
JEL Classification: K14, K10, K42
Suggested Citation: Suggested Citation