58 Pages Posted: 7 May 2005
In Civil and Criminal Sanctions in the Constitution and Courts, the author critiqued and ultimately rejected the suitability of the Supreme Court's combination of deference to legislative intent and multifactor analysis as an appropriate basis for protecting the civil rights of persons the state threatens with punishment. The article proposed a very different test for distinguishing civil and criminal sanctions based on the type of threats posed to the rights protected by constitutionally enhanced procedural protections. The approach, called the "Systemic Social Effect Theory" (SSET), required distinguishing between civil and criminal sanctions based on whether the sanction has the systemic social effect of punishing those convicted of the relevant violation of law. Civil and Criminal Sanctions in the Constitution and Courts left two important subjects for future consideration, however. First, the centrality of the subject to a panoply of important jurisprudential questions has motivated several authors to offer proposals for distinguishing between civil and criminal sanctions either generally or for specific purposes. These alternatives are considered in light of the politico-ethical theories underlying the Constitution to determine how they stack up against the SSET. Once it has been shown that the SSET offers the best basis for distinguishing between civil and criminal sanctions for all potential and actual defendants, the implications of the SSET for many areas of law appear quite radical. The Court's current distinction between civil and criminal sanctions, as well as several approaches proposed by other authors, permit a variety of punitive measures to fall within the definition "civil" sanctions that do not necessitate enhanced procedural protections in the treatment of the suspect or defendant. The SSET dictates that a variety of punishments, including punitive damages, civil fines and forfeitures, and disbarment may require that the Constitution's enhanced procedural protections be afforded to the suspect or defendant.
Keywords: Civil penalties, punitive damages, criminal law, civil rights, punishment
JEL Classification: K14
Suggested Citation: Suggested Citation
Fellmeth, Aaron Xavier, Challenges and Implications of a Systemic Social Effect Theory. University of Illinois Law Review, 2005. Available at SSRN: https://ssrn.com/abstract=715581