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Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction Mary M

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Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction Mary M Hastings Law Journal Volume 42 | Issue 5 Article 2 1-1991 Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction Mary M. Cheh Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325 (1991). Available at: https://repository.uchastings.edu/hastings_law_journal/vol42/iss5/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Understanding and Transcending the Criminal- Civil Law Distinction by MARY M. CHEH* I. Introduction Today, the distinction between criminal and civil law seems to be collapsing across a broad front. Although the separation between criminal and civil cases is a legal creation both imperfect and in- complete,' this basic division has been a hallmark of English and American jurisprudence for hundreds of years. The Constitution, statutes, and the common law all draw fun- damental distinctions between criminal proceedings, which empha- size adjudication of guilt or innocence with strict adversarial protections for the accused, and civil proceedings, which emphasize the rights and responsibilities of private parties. We have separate criminal and civil courts, employing different rules of procedure, burdens of proof, rules of discovery, investigatory practices, and modes of punishment.2 This distinction is cemented in every law stu- dent's mind by the division of the law school curriculum into criminal and civil categories. Now, however, there is a rapidly accelerating tendency for the government to punish antisocial behavior with civil remedies such as injunctions, forfeitures, restitution, and civil fines. Sometimes civil * Professor of Law, The National Law Center, George Washington University. B.A. 1972, J.D. 1975, Rutgers University; LL.M. 1977, Harvard University. Author's Note: Funding for this Article was provided by the National Institute of Justice, U.S. Department of Justice, under contract OJP-86-C-002. Opinions stated in the Article are those of the author and do not necessarily represent the position or policies of the U.S. Department of Justice. 1. See, e.g., Hall, Interrelations of Criminal Law and Torts: I, 43 COLuM. L. REv. 753, 756-60 (1943). 2. See, e.g., Smith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 U. Cm. L. REv. 1, 3 (1990) (in criminal cases, unlike civil ones, a defendant can appeal a conviction by alleging legal error favorable to the government, but the government cannot appeal an acquittal by alleging error favorable to the defendant). [13251 1326 THE HASTINGS LAW JOURNAL [Vol. 42 approaches completely supplant criminal prosecutions as certain be- havior is "decriminalized," or as offenders are treated as ill instead of guilty. 3 More frequently, civil remedies are blended with or used to supplement criminal sanctions, as evidenced by the widespread use 4 of forfeiture in drug cases. Many states are using civil law techniques to check domestic vi- olence,5 drug trafficking, 6 weapons possession, 7 and racial harass- ment.8 The federal government, through the Racketeer Influenced and Corrupt Organizations Act (RICO), 9 is using divestiture and treble damage actions to strike at businesses run by white collar criminals and members of organized crime.'0 The federal government also has 3. See H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 332-54 (1968); Kadish, The Crisis of Overcriminalization, 347 ANNALS 157 (1967). 4. The federal civil forfeiture rules applicable in drug cases are codified at 21 U.S.C. § 881 (1988) as part of the Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-473, 98 Stat. 2044 (1984) (codified as amended in scattered sections of titles 18, 19 and 21 of the U.S. Code). Over 100 federal forfeiture statutes are currently in effect, covering the seizure of goods and property and encompassing a wide range of activities. The recent explosive growth of state and federal forfeiture schemes to combat drug offenses and other criminal activity has spawned a large number of cases and scholarly articles. See, e.g., Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989); United States v. Monsanto, 491 U.S. 600 (1989); Fried, Rationalizing Criminal Forfeiture, 79 J.CRIM. L. & CRIMINOLOGY 328 (1988); Note, "A RICO You Can't Refuse:" New York's Organized Crime Control Act, 53 BROOKLYN L. REV. 979 (1988) (authored by Ethan Brett Gerber); Note, Constitutional Rights and Civil Forfeiture Actions, 88 COLUM. L. REV. 390 (1988) (authored by Jay A. Rosenberg); Comment, The Scope of Real Property Forfeiture for Drug-Related Crimes Under the Comprehensive ForfeitureAct, 137 U. PA. L. REV. 303 (1988) (authored by Sean D. Smith). The use of forfeiture is well-rooted in the common law. See, e.g., The Palmyra, 25 U.S. (12 Wheat.) I, 14 (1827); Hughes & O'Connell, In Personam (Criminal) Forfeiture and FederalDrug Felonies: An Expansion of a Harsh English Tradition into a Modern Dilemma, 11 PEPPERDINE L. REV. 613, 619 (1984). 5. Forty-seven states and the District of Columbia have statutes authorizing the issuance of civil protection orders to curb domestic violence. See, e.g., CONN. GEN. STAT. ANN. § 46b-15 (West 1986 & Supp. 1990); D.C. CODE ANN. § 16-1003 to 1006 (1981 & Supp. 1989); ME. REV. STAT. ANN. tit. 19, § 761 (1981 & Supp. 1990). 6. E.g., Florida Contraband Forfeiture Act, FLA. STAT. ANN. §§ 932.701-704 (West 1985 & Supp. 1990) (allowing seizure of property on probable cause it was used to transport contraband). 7. E.g., CAL. WELF. & INST. CODE § 8102 (Deering 1990 Supp.) (authorizing confis- cation of firearms in the possession of mental patients). 8. E.g., MASS. GEN. LAWS ANN. ch. 12, § llH (West 1986 & Supp. 1990) (authorizing civil suits by the state seeking equitable relief to remedy civil rights violations). 9. Racketeer Influenced and Corrupt Organizations Act, Pub. L. No. 91-452, 84 Stat. 941 (1970) (codified at 18 U.S.C. §§ 1961-1968 (1988)). 10. There is extensive literature addressing both the wisdom and the constitutionality of the civil RICO law. See, e.g.,Boucher, Closing the RICO Floodgates in the Aftermath of Sedima, 31 N.Y.L. SCH. L. REV. 133 (1986); Goldsmith, Civil RICO Reform: The Basis July 1991] CIVIL REMEDIES AND CRIMINAL LAW OBJECTIVES 1327 reinvigorated the qui tam action, which effectively deputizes private citizens to enforce monetary penalties against persons who have de- frauded the government." The idea of using civil remedies to redress criminal behavior is not new. A criminal who injured or robbed another traditionally faced two potential trials-a criminal prosecution by the government to adjudge her guilty and punish her for the offense, and a civil action by the victim for recompense. 12 Similarly, in the administrative or regulatory sphere, the federal government long has pursued antitrust and securities law violators with civil injunctions as well as criminal complaints.13 Yet the current phenomenon of civil remedies blending with criminal sanctions never has been more actively or consciously pursued. Forfeiture is a case in point. The United States Attorney General has declared forfeiture a top priority and even has created the Ex- ecutive Office of Asset Forfeiture to oversee all aspects of the Justice Department's forfeiture efforts.14 The federal government's use of forfeiture to seize the proceeds and instruments of crime has grown so spectacularly that in 1989 alone the amounts forfeited-over $600 million worth of currency, cars, planes, boats, and even cattle-are twenty times the amounts forfeited just four years earlier.15 In the past five years, combined state and federal efforts have stripped more than one billion dollars from drug dealers, and the states are working for Compromise, 71 MINN. L. REv. 827 (1987); Lacovara & Aronow, The Legal Shakedown of Legitimate Business People: The Runaway Provisions of Private Civil RICO, 21 NEw ENo. L. REv. 1 (1986). 11. See 31 U.S.C. §§ 3729-3733 (1988) (False Claims Act). A qui tam action is a statutory suit brought by a private person on behalf of herself and the United States government to recover damages, penalties, or forfeitures against a third party. The plaintiff is like a bounty hunter; she has no interest in the controversy other than the statutory opportunity to share the monetary recovery with the United States. See generally Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341 (1989). 12. W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER & KEETON ON TORTS § 2, at 8 (5th ed. 1984); cf. United States v. Dixon, 347 U.S. 381, 385 (1954) ("Clearly Congress may impose both a criminal and a civil sanction in respect to the same act; this is neither unusual nor constitutionally objectionable."). 13. See 15 U.S.C. § 4 (1988) (Sherman Act) (granting jurisdiction to issue injunctions to prevent and restrain antitrust violations); Comment, Implications of the 1984 Insider Trading Sanction Act: Collateral Estoppel and Double Jeopardy, 64 N.C.L. REv. 117, 121- 22 (1985) (authored by Jonathan A. Blumberg); see also 15 U.S.C. § 15(a) (1988) (Clayton Act) (authorizing treble damages in private suits for antitrust violations); 15 U.S.C. §§ 78c, 78o, 78t, 78ff (1988) (civil penalties for insider trading violations of securities law). 14. U.S.
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