A man vandalizes a public building, doing $100 worth of damage. The city in which it occurs has an ordinance providing that anyone who vandalizes public property must pay restitution and a $1000 fine.
Situation A:
The city prosecutes the man under the statute, seeking a total of $1100. Because it is a criminal prosecution, they must prove guilt beyond a reasonable doubt, provide a public defender, reveal all evidence they collect, allow him to refuse to testify, not question him unless he allows it, etc.
Situation B:
The city sues him for $100, plus asks for $1000 in punitve damages. Because it is a civil case, they can force him to testify, force him to give depositions, not provide a public defender, and at the end of it all they only have to provide a preponderance of evidence.
Isn’t Situation B the same as Situation A, except without the constitutional protections? It seems to me that civil cases are supposed to be about making the plaintiff whole. Criminal cases are about deterrance. That’s the difference between them. Using civil cases to provide deterrance allows anyone to play DA, without the constitutional safeguards, just as long as they’re just asking for fines, not jail time. Shouldn’t any seeking of punitive measures be consired criminal prosecution, and incur the constitutional limitations thereof?
I agree that punitive damages are an abomination for several reasons, including what you just said. They are a punishment without due process required for punishments.
Forfeiture laws are another abomination for the same reason.
In Situation A (the ciminal case) the guy is also looking at a criminal record that will follow him throughout his life. There is also the possibility of jail time even if it’s just for the time it takes to call his lawyer.
Could you explain this some more? I just read the web page you referenced, and it doesn’t seem to fit the situation.
The OP didn’t say that either one thing or the other had to be the case, which seems to be what false dilemma is about.
Civil Cases are not about “making the plaintiff whole”. Criminal cases are not about “deterrance”. Civil Cases are part of the Common Law, descended of Low Justice. Criminal Cases are part of the Code, descended of High Justice. The Civil case addresses injury of tort while the Criminal addresses lese majeste to some greater or lesser degree.
The problem is that our current system permits the state to file a civil case. In reality, the state should only be permitted to file criminal cases and levy criminal fines. This would require rewriting some aspects of law to make certain currently “civil” infractions actually criminal, but I could live with that.
Let us take an example of a homicide:
The criminal charge is one of murder or manslaughter. This is the crime against the state, against the authority of the sovereign (be that sovereign a king or “the people” represented by their elected officials). The status of the victim or the victim’s family ought to be irrelevant. Killing another person without just cause has been defined by Code as a crime. Thus, it is prosecuted.
The civil dispute is one of “wrongful death”. A tort has been created between the perpetrator and the heirs of the victim. This essentially creates a matter of indebtedness. A person is usually held responsible if he destroys anothers property, a death-related tort extends this concept.
In essence, the criminal case is meant to restore the injured honor of the sovereign against the vile dog who dared question its authority. The Civil case is meant to end the matter on a personal level. Ultimately, it is based on a theory of law that presumes that individual humans have value distinct from merely being underlings of the sovereign. If one believes that we all really are and ought to be mere slaves of the state machine, one will reject this principle, of course.
Certainly. Ryan incorrectly claimed that civil law is about A, while criminal law is about B. In reality, there is nothing that excludes B from civil law, nor C, D, and E. Hence, false dilemma.
This is absolute nonsense. The fact that someone says that is not a false dilemna. If someone says (incorrectly) that one option precludes the other it is a logical error. Not if he merely says it happens to be so.
You appear to have made a logical error known as the “Failure to Understand What the Other Guy is Saying Fallacy”. Or possibly some other error.
I do not see there is any reason to stop the government from civil litigation. It is the nature of the case which should define it as civil or penal, not who is the plaintiff.
A civil case seeks remedy for a tort suffered. It seeks compensatory damages. If I have suffered a wrong I want to be restored to the position I was in and I should be compensated for the actual damages suffered. It does not matter whether I am an individual or a corporation, even a government body.
But a penal case is to punish someone for a wrong he has committed against the whole of society. The fine should go to the state, not to any individual’s pockets.
Both government and individuals should be able to be plaintiffs in civil and penal cases but the different nature of both should be clear and the due process adjusted accordingly.
Civil cases, both those involving punitive damages and those only involving compensatory damages, have always been about deterrence, not just making the victim whole. Civil compensatory damages deter parties from breaching contracts, acting negligently, failing to make upgrades necessary for safety, etc. If you cannot profit from your breach of a contract or your negligent actions by the threat of a civil claim, you are deterrred from doing so.
One of the reasons punitive damages developed was that, in some instances, compensatory damages are an insufficient deterrent. It may well be that it is cheaper for a party to continue to act in a negligent manner, because the cost of compensatory damages are less than the cost of acting reasonably. Punitive damages (at least in theory) bridge that gap.
Didn’t Ford Motor Co. internal memos show that the company execs considered the relative costs to the company of fixing the Pinto fuel tank vs. paying for damages in case of fire? And they decided it was cheaper to pay the damages.
I think most cases of jury awards of what seem to be exhorbitant punitive damages are because the defendant, ususally a corporation and its officers, have pissed the jury off by their actions. As in the Ford case, or the Johns-Manville case, or the cigarette company cases, and on and on. The jury seems to be to be saying, “They think it’s cheaper to pay damages than not kill people? We’ll show 'em just how wrong they are!”
Sua, you are explaining how things are and I am arguing they should not be like that. Compensatory damages are of civil nature and should be subject to rules of civil litigation. Punitive damages are punishment in nature and should be subject to rules of penal process. If someone deserves to be punished, then let us punish him, but he should have all the protections of due process for a penal case and the proceeds of the fine should go to the state, not to some individual’s pocket.
Are you saying that no civil cases are based on statute? And what is the difference between tort and “making whole”?
That is what I mean when I referred to the concept of “making whole”; the plaintiff receives whis is owed to him.
SuaSponte
I think that you are unclear on the concept of deterrence. If one can, at worst, be deprived of the profit that one unfairly obtained, that is hardly deterrence. While some people may not take actions because of the civil liabilities, that is not the purpose of civil cases.
But why does that gap need to be bridged? If I develop a new procedure for building cars that saves $10 per car, but results on a .01% chance of making the car (worth $20,000) break down within a month. Then anyone who has their car break down can sue me for $20,000. On each car, I’ll lose an average of $2, but save $10. A net profit of $8. Looks like I should go ahead. Now, on what basis should there be punitive damages to bridge that $8 gap? Don’t I deserve to keep that $8 for developing a process that saves $8 more than it costs?
No. You’re offloading the costs of replacing those cars and the pain and headache of dealing with the defective vehicles(not to mention the increased risk to life, limb, and loved ones) onto the customer. Juries, who are made up of consumers, tend to resent this offloading of costs onto their peers. As such, they punish, with punitive damages, the entities who do it.
sailor, I agree with you for most situations, especially in a civil suit against an individual, but I think that rule leaves too much wiggle room for the corporate “persons” in borderline situations where they can’t quite prove guilt to a criminal standard of evidence. Pinning down the motivation and actions of a nebulous entity like the corporate “person” is much more difficult than prosecuting an individual. I’m not sure I want to extend full due process protection to corporate “entities”. They are only persons in certain aspects and I don’t favor granting them more privileges of personhood.
I’m not an expert on criminal law, but I would guess that if one is accused of violating an ordinance with no threat of jail time, one is not constitutionally entitled to a jury trial or a public defender. Just speculating though.
I do think that there is something a little troubling about a governmental entity suing a citizen for punitive damages.
Just for the record, can you cite actual cases where govenments have brought a civil lawsuit vs. criminal prosecutions, or is this strictly hypothetical?
I’ve never heard of this distinction between High and Low Justice before, nor your opposition of the Common Law to “the Code”. Care to elaborate on your meaning?
So if I enter into a contract with the Government for the provision of goods, and then fail to deliver, the only option for the Government is to prosecute me for criminal breach of contract? Yet if I enter into the same contract with a private party and breach it in the same way, it falls to the civil courts? Why should there be such a drastic difference depending on whether I’m contracting with government or a private party? Why would you require government to be limited to the most drastic remedy, instead of having the same range of options as a private party? I’m afraid I don’t follow.
Even if you think that these costs are legitimately my responsibility, that wouldn’t justify punitive damages. Say you think that the customer suffers $1000 worth of damages in dealing with a defective car. Then the rational thing to do would be to add that to the judgement. Then I would still be making an average of $7.90 per car. Am I not justified in keeping that extra $7.90 for myself?
David SImons
It is a hypothetical, however I am sure that there have been instances in which a government agency had a choice between civil or criminal action, and chose civil.
Recent events, however, have made me think that the greatest danger perhaps does not come from the government itself using civil suits as a constitutional loophole, but in ceding its punitive powers to private groups, who are then free to penalize others without fear of constitutional limitations. For instance, the tobacco and gun industries are facing what are in essence criminal charges, with no crimes alleged nor any of the protections afforded criminal defendants.
More worrisome, alleged music swappers are facing fines of $150,000 per song. I think that it’s quite obvious that the music industry does not suffer losses within even a few orders of magnitude of $150,000. So clearly this is purely punitive in nature. The music industry has bought off the federal government. More precisely, they have bought the right to prosecute people they don’t like, and to do so without the limitations found in the Constitution. If the music industry thinks that someone is violating copyright laws, they should call up the DA and ask that criminal charges be brought. The current situation is one of privatizing the criminal justice system, with private entities choosing who is prosecuted, paying for the gathering of evidence, and receiving the spoils of victory. When I see the RIAA making a mockery of the Constitution like this, copyright violation seems like a quite trivial offense in comparison.
Again, offloading of costs onto the consumer without their express foreknowledge, consent, and probably a nice little discount to offset the potential costs is something that the people of the US feel a company should be punished for. If you want to make a million cars and say, up front, 10,000 cars out of this milion cars will have severe breakdowns, probably to the point of unusability, within a month, and the public is aware of the defects, then you may have a better case. Even then the people reserve the right to tell you not to market such shoddy vehicles because they increase the risk of accidents or other problems. If you do all this clandestinely and market the cars without the explicit statements, then punishment for deceiving the public may be imposed.
Offloading of costs without an explicit understanding and acceptance of the costs by the receiving party is a very poor business practice and one which has, rightly IMHO, earned companies punititave damages. I do agree that Punititave damages should probably go to the state instead of the individual, beyond a certain level of course. The person harmed has a right to some sort of retribution for the trust which was violated by the party found at fault.
Punitive damages are punishment for doing a bad thing. Making a higher profit is not a bad thing in and of itself. Making a profit by clandestinely increasing the costs and risks to the consumer using your product is a bad thing. It is breech of contract. The customer has reasonable expectations of a certain quality in your product. If you make a decision which would affect the quality of your product but still continue to market it as if the defect introduced by the change did not exist, then you deserve to be punished.
Cost shifting with foreknowledge and agreement - pretty much fine and dandy. Expect to shell out discounts to get people to accept the additional costs you’re shifting onto them.
Cost shfiting without foreknowledge and agreement - punitive damages. Nobody likes being lied to, and it is time for you to get your mouth washed out with soap.
In any event, the RIAA is not getting punitive damages. They are getting Statutory Damages. Different thing, different rules.