Civil and Criminal Sanctions in the Constitution and Courts
79 Pages Posted: 2 May 2005
The distinction between civil and criminal sanctions carries important consequences for civil rights law. Many of the enhanced procedural protections available to criminal defendants, such as a heightened burden of proof, protections against double jeopardy and ex post facto laws, and the privilege against self-incrimination, hinge on whether a sanction is considered criminal or political. The Supreme Court's current approach is the product of centuries of self-contradiction and circular reasoning, resulting in a doctrine that now defers to state and federal legislatures on whether constitutional rights should apply, unless the court is satisfied that the sanction meets an a priori definition of criminal that the Court has never adequately justified. The article proposes a new distinction between civil and criminal sanctions for constitutional purposes known as the "Systemic Social Effect Theory" and justifies the test on a constitutional policy founded on political ethics.
Keywords: criminal sanctions, civil sanctions, civil rights, criminal law, hudson, halper, mendoza-martinez
JEL Classification: K14
Suggested Citation: Suggested Citation