Double Jeopardy Issues in the Financial Sector; Outside Counsel
New York Law Journal, Vol. 212, No. 23, 1994
6 Pages Posted: 11 Sep 2019
Date Written: August 3, 1994
Double jeopardy issues arise regularly in the financial, banking and commodities industries where both civil and criminal statutes and penalties are used in successive prosecutions by federal and state governments to sanction the same conduct. Recent Supreme Court and federal court decisions have established new standards for determining when civil fines and other civil penalties constitute “punishment” for purposes of the double jeopardy clause of the Fifth Amendment. These decisions indicate that where a civil penalty imposed by a federal or state actor bears no “rational relation” to any actual damages caused, the penalty will be characterized as punishment for purposes of the double jeopardy clause. Even a penalty imposed pursuant to a civil statute that is rationally related to actual damages caused may nonetheless be considered punishment if it is designed, even in part, to serve both remedial and punitive functions.
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