Civil and Criminal Sanctions in the Constitution and Courts

79 Pages Posted: 2 May 2005

See all articles by Aaron Xavier Fellmeth

Aaron Xavier Fellmeth

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Abstract

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

Fellmeth, Aaron Xavier, Civil and Criminal Sanctions in the Constitution and Courts. Available at SSRN: https://ssrn.com/abstract=715302

Aaron Xavier Fellmeth (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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