Criminalization of Civil Wrongs

2012-06-11 11:34:54

Traditionally there was a clear line between civil and Criminal Law. The civil law, for example, contracts, property, and torts, sought to balance private rights and to restore wronged parties to their rightful positions. The Criminal Law, on the other hand, was primarily a way for society in general to express its outrage at harmful conduct: it was a way to enforce deeply held norms. Thus, the traditional so-called common law crimes included homicide, rape, arson, and theft. Thus, the law properly recognizing the difference between bad conduct, for example, breach of contract, and conduct that would be criminal, for example, rape.

While the theories underlying the need for criminal and civil law overlapped somewhat, in practice there were clear legal differences. One, for example, could be held civilly liable for negligent conduct (or for the conduct of subordinates). But to be held criminally liable, one had to act deliberately, recklessly, or wantonly. There were good reasons for the difference. Whereas one held civilly liable would lose money, a person found criminally liable would lose his freedom and civil rights. Colloquially, there is a difference between the shame of being sued and the shame of having a criminal record. Moreover, almost everyone in a civilized society knows that murder is wrong. But civil issues such as whether property has been adversely possessed, or whether a prescriptive easement exists, are usually more complex. The demarcation between civil and criminal misconduct ensured that those who harmed the rights of others would pay for the harm caused but that they would not have the force of the Criminal Law brought down on them. Today that has changed: the line is blurred.

State and local governments enact myriad and sometimes Byzantine civil regulations covering everything from how a multinational corporation may issue stock to whether a small landowner can build on his property. Unfortunately, from a civil liberties perspective, these regulations increasingly carry with them criminal penalties. As Professor Gainer noted in Federal Criminal Code: Past and Present, there are tens of thousands of pages of regulatory violations that carry with them criminal penalties. Moreover, as an ABA report noted: ‘‘So large is the present body of federal Criminal Law that there is no conveniently accessible, complete list of federal crimes.’’ In other words, the breach of a regulation that one is ignorant of can carry with it criminal penalties. Worse, if one wanted to ensure he did not violate any Criminal Laws, he or she wouldn’t be able to reference a list.

Still worse is that the Environmental Protection Agency doesn’t adequately understand what regulatory violations carry with them criminal penalties. The line between criminal and civil wrongs moves each time a new director of the EPA is appointed.

James DeLong best summed up the problem in Go Directly to Jail: The Criminalization of Almost Everything: ‘‘The criminalization of highly complex and often conflicting [civil] regulations with virtually no requirement of intent’’ means that ‘‘even the well educated and well informed cannot be sure what the law is and what they must do to comply with it.’’

MICHAEL C. CERNOVICH

References and Further Reading

ABA Report. The Report of the ABA Task Force on the Federalization of Criminal Law. Washington: ABA, 1998.
Baker, John S., Jr. Measuring the Explosive Growth of Federal Crime Legislation. Washington: The Federalist Society for Law and Public Policy, 2004.
Gainer, Ronald L., Federal Criminal Code: Past and Present, Buff, Crim. L. Rev. 46 (1988): 2.
Healy, Gene, ed. Go Directly to Jail: The Criminalization of Almost Everything. Washington: Cato, 2004.
Lynch, Timothy. Polluting Our Principles, Cato Institute Policy Analysis No. 223 (April 10, 1995).
Meese, Edwin III, Big Brother on the Beat: The Expanding Federalization of Crime, Texas Review of Law and Politics 1 (Spring 1997): 1.