There has been much coverage over the past month of how the Department of Justice seized phone records of Associated Press reporters in an effort to identify the source of a leak about a foiled bombing. This reminds me of the Valerie Plame affair, another high-profile government investigation into media leaks—one in which the civil-criminal distinction loomed large.
For those who don’t remember the matter, here’s a brief summary. In 2003, covert CIA operative Valerie Plame was outed in a Washington Post column shortly after Plame’s husband published an op-ed critical of the Bush administration. An investigation was launched into who leaked Plame’s identity to the media. (Lewis Libby, Vice President Dick Cheney’s chief of staff at the time, was ultimately convicted of charges associated with the leak and subsequent investigation.) Two journalists who had conducted interviews on the affair, Judith Miller of the New York Times and Matthew Cooper of Time, were ordered to testify before a grand jury. They were held in contempt of court for refusing to identify their sources. After the reporters exhausted their appeals, Cooper agreed to testify because he’d received permission from his source. Miller, however, remained resolute in her refusal to identify her informant and was sent to jail. There she remained for 85 days, until she too agreed to testify.
Miller was incarcerated purely on civil grounds. She was never a defendant in a criminal trial and was convicted of no crime. Judge Thomas Hogan of the District Court for the District of Columbia ordered her detained because she was in civil contempt. “I have a person in front of me who is defying the law,” he said.
(Miller’s detention was brief in comparison to the civil contempt sanctions others have received. Financial adviser Martin Armstrong was jailed for seven years for contempt—after which he immediately began to serve a five-year criminal sentence. A Pennsylvania lawyer, H. Beatty Chadwick, holds the record for longest civil contempt incarceration: more than 14 years.)
The difference between civil contempt and a criminal sanction is illustrated by a comment Judge Hogan made about Miller: “She has the key to her own cell.” Civil contempt is meant to be remedial, to coerce an individual to comply with the court’s orders. As the Supreme Court stated in Mine Workers v. Bagwell, 512 U.S. 821, 827 (1993):
civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.
As the Court also noted, however, “Most contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender’s future obedience.” The picture becomes even more complex in light of how an individual may also be criminally punished for an act of contempt. Criminal contempt is retrospective, and the defendant in such a case enjoys the full panoply of criminal procedural safeguards. The distinction is often not so clear in practice. The same exact conduct can give rise to either civil contempt or criminal contempt. And both civil and criminal contempt can result in fines, which might have a compensatory element in both cases. Bagwell showed how blurry the distinction could be when it found that fines imposed for civil contempt were actually criminal. The Court mentioned “the difficulties encountered in parsing coercive civil and criminal contempt fines” and “the somewhat elusive distinction between civil and criminal contempt fines,” and Justice Scalia, in his concurrence, noted that the Court has employed “a variety of not easily reconcilable tests for differentiating between civil and criminal contempts.” (We’ll set aside the additional distinction between direct contempt—which takes place in the presence of the judge and serves to undermine the court’s authority—and indirect contempt—which occurs outside the courtroom and typically pertains to the failure to comply with a court order.)
I’ll note that at least one commentator might take issue with my decision to include contempt in this blog as an example of the problematic distinction between civil law and criminal law. Professor Earl Dudley has asked “whether the civil/criminal distinction in contempt differs in any significant way from the civil/criminal distinctions articulated throughout th[e] larger body of law,” and concluded that “[c]omparison of the civil/criminal distinctions made within and outside of the contempt context reveals only a nominal similarity.” Earl C. Dudley, Jr., “Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts,” 79 Virginia Law Review 1025, 1043-44 (1993). He raised some interesting points about the very different origins of the two dichotomies, and about the differing points in the process when the civil-criminal determination must be made (in the contempt context, it must occur right at the start). Still, I believe contempt is a telling example of how someone’s liberty might be abridged when the courts apply or defer to a label—and I’m not sure it’s a coincidence that the labels happen to be “civil” versus “criminal,” or “punitive” versus “remedial,” just as they are in other contexts. And it seems fully in keeping with the spirit of this blog to consider how a nominally civil proceeding can and does result in sanctions that are far worse than those stemming from a criminal proceeding, despite weaker safeguards.
Professor Berman over at Sentencing Law and Policy was kind enough to call my blog to his readers’ attention. I thank him for that and I welcome any readers who might be checking out this blog for the first time. As Professor Berman mentioned, I’m new to the blogosphere, so I certainly welcome your feedback and ideas. (I’ve already received some good ones.) Feel free to post in the comments or to e-mail me at email@example.com. I hope to contibute something useful to the discourse around this important but fraught area of law.
A couple of weeks ago, the South Carolina Supreme Court affirmed the satellite monitoring of a sex offender for the rest of her life. This ruling received some attention from other blogs, including Sentencing Law and Policy and The Volokh Conspiracy. At the latter link, Eugene Volokh provides this clear summary:
When Jennifer Dykes was 26, she had a sexual relationship with a 14-year-old girl. She was convicted of “lewd act on a minor,” and was sentenced to (in effect) 3 years in prison and 5 years’ probation. She violated her probation in various ways (flaking out on sex offender counseling, moving without notifying her probation agent, and more). Under South Carolina law, people guilty of lewd acts with minors must be placed on lifetime satellite monitoring, and the same is true for people convicted before the satellite monitoring statute’s effective date if they violate probation after that effective date.
Dykes sued to set aside the lifetime monitoring as a violation of the Fourteenth Amendment, but a majority of the South Carolina Supreme Court disagreed (State v. Dykes (S.C. May 22, 2013)). The lead opinion (for two Justices) concluded that such lifetime monitoring is constitutional if it has a rational basis, and found that there is such a rational basis. One Justice concurred in the judgment without opinion. Two dissenting Justices reasoned that such lifetime monitoring must pass strict scrutiny, which this law didn’t, because it didn’t provide for “actual consideration of [each offender’s] likelihood to reoffend.”
The opinion, it turns out, relies heavily on the civil-criminal dichotomy. Dykes argued that the mandatory lifetime monitoring—imposed without any regard for her likelihood of reoffending—violated her Fourteenth Amendment due process rights by infringing her fundamental right to be “let alone.” The lead opinion disagrees: “Our rejection of Dykes’ fundamental right argument flows in part from the premise that satellite monitoring is predominantly civil.” It continues, “Where, as here, the legislature deems a statutory scheme civil, ‘only the clearest proof’ will transform a civil regulatory scheme into that which imposes a criminal penalty.”
This strikes me as peculiar logic, for it seems to assume that only criminal penalties limit fundamental rights. Yet all the time, civil measures bear upon individuals’ fundamental rights. Consider the civil commitment of sex offenders, addressed in my last post; there is no question that detaining someone indefinitely implicates that person’s fundamental rights, and the fact that it is done through a civil measure rather than a criminal one does not make the rights at stake any less fundamental.
The dissent makes this very point in a footnote:
I note as well my disagreement with the majority’s assertion that merely because it is civil in nature, rather than criminal, the statute does not implicate a fundamental right. Whether a statute is characterized as civil or criminal is immaterial to this analysis and certainly not dispositive. See Luckabaugh, 351 S.C. at 135–140, 568 S.E.2d at 344–347 (recognizing that although the Sexually Violent Predator Act is civil and non-punitive in nature, it nevertheless infringes the “fundamental right to liberty, free from bodily restraint”).
The lead opinion’s reliance on the civil-criminal distinction does not end there, however. It states:
This Court has examined this language [in the statute describing the law’s intention] and held “it is clear the General Assembly did not intend to punish sex offenders, but instead intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” Thus, a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme. [Citation omitted.]
The result, according to the opinion, is that the rational relationship test is the correct one to apply, and the imposition of satellite monitoring is indeed rationally related to the ends “of protecting the public from sex offenders and aiding law enforcement.”
I believe the court did not conduct a sufficiently thorough examination to determine whether the law was in fact sufficiently non-punitive. According to the court, all the legislature needed to do was apply the non-punitive label. And it’s true that the label matters—to a great extent. But the courts have developed two interrelated tests to determine whether a law is civil or criminal (i.e., whether it punishes or merely regulates). The first is the “intent-effects” test, which first asks whether the legislature intended to establish a punitive measure, then considers whether the law is so punitive in effect as to overcome the punitive intent. The second is the Mendoza-Martinez factors, about which I previously blogged. Those factors help analyze the effects prong. The South Carolina Supreme Court’s lead opinion never reached the effects prong.
I concede that even if it had, it probably would not have found that the effects provided “the clearest proof” that the law was actually punitive. Nonetheless, the opinion’s reasoning makes it seem like a textbook case of the legal labeling game. The court conducted a very limited analysis before deeming the law non-punitive, resulting in fewer procedural protections, thereby making it easier for the state to abridge someone’s liberties.
One of the more controversial recent issues implicating the civil-criminal distinction is the civil commitment of sex offenders. In Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court held that states could detain sex offenders who completed their prison sentences but remained sexually dangerous due to mental abnormalities. The sex offender in this case, Leroy Hendricks, complained that, among other things, this constituted punishment and therefore ran afoul of the constitutional prohibitions on double jeopardy (because he had already been prosecuted) and ex post facto laws (because the statute was enacted after he committed his crimes). The Court did not agree with those claims, deeming Kansas’s Sexually Violent Predator Act civil, not criminal. That meant Hendricks was not being punished and couldn’t rely on double jeopardy or ex post facto protections. This holding generated much criticism from the academy
Today, Minnesota Public Radio had this interesting report about Minnesota’s sex offender civil commitment program. Here is an excerpt:
Before the legislative session began, former Minnesota Supreme Court Chief Justice Eric Magnuson set up interviews with the news media and sent a message: If legislators didn’t act quickly, a federal judge in a class-action suit would rule the Minnesota Sex Offender Program unconstitutional. The program is supposed to provide treatment, but it has released only one of about 700 people being indefinitely detained. The program costs the state $326 a day to hold and provide treatment for each offender at two secure facilities at Moose Lake and St. Peter — three times the average cost of keeping an offender in prison….
It will be interesting to see what the judges handling this class action decide to do.
By the way, in Hendricks, the Court found that treatment was not necessary for Kansas’s Sexually Violent Predator Act to be found constitutional. Leroy Hendricks was finally released in 2005, after about 11 years of detention beyond his prison sentence. By this time, he was 70 years old and had suffered a stroke that limited the use of his hands, and also remained under constant supervision.
I was interested to learn that Columbia Law School offers a seminar, “Interplay of Civil and Criminal Law.” It is co-taught by Judge Jed S. Rakoff, of the Southern District of New York, and Walter P. Loughlin, of the law firm K&L Gates. The seminar focuses on many issues that are at the core of this blog. Mr. Loughlin and Judge Rakoff were kind enough to send me the syllabus and to give me permission to post it. Here it is (PDF). And here is the description of the seminar in Columbia Law School’s course catalog:
This seminar is designed both for those who want to be successful practitioners and for those who simply want to know where the law is going and why: in other words, the seminar’s focus is both practical and jurisprudential. The subject of the seminar is the breakdown, if not abandonment, of the historic legal distinction between tort and crime. Civil juries, for example, are routinely requested to award “punitive” damages, while sentencing judges are required to impose “civil” restitution. The Supreme Court, asked to determine when “civil” fines constitute “criminal” punishment for double jeopardy purposes, has struggled to define a satisfactory doctrinal borderline between civil and criminal proceedings, twice reversing itself in less than a decade. Everyday business lawyers increasingly find it difficult to advise their clients of whether in, say, building a new plant, doing business overseas, or marketing on the Internet, they face risks of civil or criminal exposure, or both. Litigators increasingly find themselves simultaneously defending criminal prosecutions, regulatory proceedings, and private class actions all premised on the same underlying conduct. These and other such problems that characterize the ever-increasing interplay of civil and criminal law will be examined in the seminar from practical, theoretical, and policy perspectives in detailed case studies drawn from such diverse areas as tax, antitrust, securities, and racketeering. There are, however, no prerequisites for the seminar other than an open mind.
I hope we see more law schools offer courses on this important subject. If you know of any others, please let me know in the comments or via e-mail (firstname.lastname@example.org).
Back in 1973, Harvard Law Professor Alan Dershowitz published an article, “Preventive Confinement: A Suggested Framework for Constitutional Analysis,” 51 Texas Law Review 1277. Forty years later, the article remains very relevant—so much so that Dershowitz built upon it in his 2006 book Preemption: A Knife that Cuts Both Ways. (I worked as a research assistant for Dershowitz for a few years during and after college, including on Preemption.)
In the article, Dershowitz described what he calls a “legal labeling game.” Here’s how the game is played: A legislature enacts a law that attempts to abridge somebody’s liberty. (Sex offenders are a salient example that I’ll address in detail in later posts.) To facilitate the process of imposing that liberty abridgment, the legislature makes few procedural safeguards available to the person who will suffer the loss of liberty. That person then goes to the courts and attempts to prevent the liberty abridgment by claiming that he is being punished, or being subjected to a criminal prosecution, without all the constitutional protections to which he is entitled. The state, in response, claims that the liberty abridgment is not part of punishment or criminal prosecution, but rather a civil, non-punitive, or regulatory action. Dershowitz wrote that the courts consistently accepted the state’s position and therefore helped them to win the legal labeling game.
As I expect will become clear, I’m sympathetic to this account, and I believe it continues to play out over and over today.
A leading case in determining whether a measure is civil or criminal is Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). (The majority opinion was by Justice Arthur Goldberg, for whom Dershowitz clerked the following term, not coincidentally.) As we will see, deportation, removal, and exclusion are current hot topics at the intersection of civil law and criminal law. Thus, it’s appropriate that the key case from half a century ago also falls into that category.
The case involved a U.S. citizen, Francisco Mendoza-Martinez, who left the county to avoid serving in the military during World War II. Years after he returned, he was deemed to have forfeited his U.S. citizenship, and was ordered deported. The determination and order were automatic, without any trial or proceeding. The Court considered whether Mendoza-Martinez had been punished by deprivation of citizenship without due process. This, of course, hinged on whether the stripping of citizenship constituted “punishment”—in other words, the very question at the center of the legal labeling game Dershowitz identified. The majority opinion in Mendoza-Martinez lists “the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character”:
- Does the sanction stemming from that Act of Congress involve an affirmative disability or restraint?
- Has the sanction historically been regarded as a punishment?
- Does the sanction come into play only on a finding of scienter?
- Will the sanction’s operation promote the traditional aims of punishment—retribution and deterrence?
- Is the behavior to which the sanction applies already a crime?
- Can the sanction be assigned to an alternative purpose to which it may rationally be connected?
- Does the sanction appear excessive in relation to the alternative purpose assigned?
(Though I draw on the Court’s language in this list, I’ve omitted quotation marks to make it more readable.)
In this case, after considering the factors and “the objective manifestations of congressional purpose” for the statute in question, the Court found that stripping of citizenship was punitive and ruled in Mendoza-Martinez’s favor—an atypical example of the defendant coming out ahead in the legal labeling game. Unfortunately, the Court acknowledges that the factors it listed “may often point in differing directions,” and as later cases have made abundantly clear, the Mendoza-Martinez factors have not succeeded in providing a clear partition between the civil and criminal law.
In my opinion, the legal labeling game is alive and well, and later courts’ application of the Mendoza-Martinez factors shows that we continue to lack a well-defined distinction between civil law and criminal law.
A longtime interest of mine is the blurry distinction between civil law and criminal law. The subject is far more relevant and important than it might initially seem to those who haven’t had occasion to consider it before. The reason is that a great deal depends on whether a particular legal proceeding is civil or criminal. The two usually entail different procedures and penalties, which could determine, for example, whether someone ends up spending decades behind bars.
A highly publicized example of this distinction is the pair of trials faced by O.J. Simpson when he was accused of killing his ex-wife and her friend in 1994. First he was the defendant in a criminal trial. In that proceeding, the plaintiff was the People of the State of California because Simpson was accused of the crime of murder, and crimes are wrongs defined by and therefore considered to be perpetrated against the whole community. The prosecution in the criminal trial represented the entire population of California, where the crimes occurred.
After Simpson was acquitted of the crimes, he stood accused a second time, this time in a civil trial for causing the wrongful deaths of Ronald Goldman and Nicole Brown Simpson. In this trial, the plaintiffs were the Goldman and Brown families, who claimed that the private rights of their family members had been violated. The Goldman and Brown families would have been allowed to sue even if Simpson had been convicted in the criminal trial. Thus, the same wrongs—here, the killings—can trigger both criminal proceedings (initiated by the state for the offense against society) as well as civil proceedings (initiated by private actors for the wrongs perpetrated against them).
If Simpson had lost his criminal trial, he could potentially have faced life imprisonment. (If the district attorney had opted to pursue the death penalty, Simpson could also possibly have faced that punishment.) When he lost the civil trial and was found liable for the wrongful deaths of Brown Simpson and Goldman, he was ordered to pay $33.5 million to the victims’ families.
Although both trials dealt with the same alleged acts, the outcomes differed, which demonstrates yet another significant difference: civil trials and criminal trials are conducted differently. While both involve an adversarial process and the right to a verdict rendered by a jury, criminal proceedings entail different rights and procedural safeguards than do civil proceedings. For example, in the criminal trial, the prosecution bore the burden to prove beyond a reasonable doubt that Simpson committed the crimes with which he was charged. In the civil trial, however, the plaintiffs had to prove by a preponderance of the evidence that Simpson was liable for the wrongful deaths. “Beyond a reasonable doubt” is a heavier onus than “a preponderance of the evidence.” The difference in the legal protections stems from the relative seriousness of the potential outcomes; while having to pay millions of dollars is a serious sanction, it is regarded as less severe than spending decades in prison.
I’ve tried to provide a very accessible example here for the benefit of those who might not be familiar with the civil-criminal distinction. Of course, both fields of law can be enormously complex, and other cases and examples about which I’ll blog illustrate that fact. As I continue blogging, I hope it becomes apparent that the Simpson case is just the tip of the iceberg, and that the divide between the civil and the criminal is often quite unclear. Because so much depends on whether a proceeding is civil or criminal, the distinction also creates problematic incentives and generates a multitude of thorny legal questions.
The blurry bifurcation between civil law and criminal law is an important matter that, at the very least, warrants its own blog. I intend to use this space to call attention to interesting scholarship on the topic, to highlight current news involving the civil-criminal distinction, to discuss cases implicating this subject, and to share my own thoughts on the issue. I welcome comments, both on the blog itself and via e-mail at email@example.com.