Skip to content

Carol S. Steiker: Foreword: Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775 (1997).

Abstract: Twenty-Sixth Annual Review of Criminal Procedure: Foreword. A growing number of cases in the United States Supreme Court and the lower federal and state courts pose versions of the same general question: when do governmental actions which are denominated "civil" by legislature but which deprive citizens of liberty or property count as "punishment" so as to implicate some or all of the special procedural regime reserved for the imposition of criminal punishment? The article begins by considering two recent cases in the Supreme Court which pose quite different versions of the question: United States v. Ursery, which posed a double jeopardy challenge to in rem civil forfeiture actions in light of Halper, Austin, and Kurth Ranch; and Kansas v. Hendricks (currently pending), which poses an ex post facto and double jeopardy challenge to Kansas' "sexually violent predator" law, which authorizes long-term civil commitment for those, inter alia, who have been convicted of sexually violent crimes and who suffer from a "mental abnormality" which renders them likely to offend again. Before offering an analysis of the problems posed by Ursery and Hendricks, the article first explores some of the intellectual, institutional, and socio-cultural causes of the de-stabilization of the criminal-civil distinction in modern American law. It then turns to the work of moral philosophers on punishment theory to attempt to develop an account of punishment that distinguishes it from non-punitive takings of money and property and from non-punitive restrictions on liberty AND that explains how these distinguishing features relate to the separate procedural apparatus we have established for its imposition. Finally, it returns to the Ursery and Hendricks cases to apply the insights developed from moral theory.