Document Type

Article

Publication Date

1991

Center/Program

Center for Contract and Economic Organization

Center/Program

Center on Corporate Governance

Abstract

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, to define the proper sphere of the criminal law, one must explain how its purposes and methods differ from those of tort law. Although it is easy to identify distinguishing characteristics of the criminal law – e.g., the greater role of intent in the criminal law, the relative unimportance of actual harm to the victim, the special character of incarceration as a sanction, and the criminal law's greater reliance on public enforcement – none of these is ultimately decisive. Rather, the factor that most distinguishes the criminal law is its operation as a system of moral education and socialization. The criminal law is obeyed not simply because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and deserving of compliance. Far more than tort law, the criminal law is a system for public communication of values. As a result, the criminal law often and necessarily displays a deliberate disdain for the utility of the criminalized conduct to the defendant. Thus, while tort law seeks to balance private benefits and public costs, criminal law does not (or does so only by way of special affirmative defenses), possibly because balancing would undercut the moral rhetoric of the criminal law. Characteristically, tort law prices, while criminal law prohibits.

The fourth and final assertion of this Article is that implementation of the crime/tort distinction is today feasible only at the sentencing stage. Neither legislative action nor constitutional challenge is likely to reverse the encroachment of the criminal law upon areas previously thought civil in character. But, at the sentencing stage, courts can draw a line between the enforcement of norms that were intended to price and those intended to prohibit. Indeed, because a sensible implementation of the crime/tort distinction requires a close retrospective evaluation of the defendant's conduct, sentencing may be the only juncture where the distinction can be feasibly preserved.

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