Hastings Law Journal


Mary M. Cheh


Recent years have seen a rapidly accelerating tendency for the government to punish antisocial behavior with civil remedies-such as injunctions, forfeiture, restitution, and civil fines-in addition to, or in lieu of, traditional criminal penalties. Two prominent examples are the widespread use of forfeiture in drug cases and the use of divestiture and treble damage judgments in civil RICO actions. A hallmark of Anglo- American jurisprudence for centuries, the basic division between civil and criminal matters appears to be collapsing. The distinction remains important, however, because, in addition to being a means for punishing specific individuals, criminal proceedings are official ceremonies of guilt adjudication, reaffirming moral rules and expressing our society's ideology of free will and personal responsibility.

In her Article, Professor Cheh addresses the pressures brought to bear on individual rights by the proliferation of civil supplements to criminal law. Examining the range of approaches adopted by courts and commentators, Professor Cheh finds that following the label chosen by the legislature for a particular type of proceeding represents the only principled and reliable method for distinguishing civil from criminal proceedings. She then criticizes the dilution of Bill of Rights protections that results from their limitation to "criminal" proceedings, despite the expanding use of "civil" proceedings to penalize wrongdoers. Using the examples of civil protection orders and civil contempt, Professor Cheh argues that the criminal-civil law distinction is inadequate to prevent potential constitutional harms from dual criminal and civil enforcement actions. She concludes that our legal system can best safeguard against such inequities through more vigorous and universal judicial application of due process norms.

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