3. The Nature of Criminal Justice

Understanding the fundamental nature of criminal justice is understanding the difference between criminal justice and other forms of justice. Criminal justice is characterized by the fact that it sanctions behavior that is seen as particularly harmful or dangerous. A largely distinct set of institutions exist to cater to criminal offences and the distinction between the two manifests itself in the strong vertical, public order and moral dimensions of the criminal law as opposed to the inter-subjective, horizontal and transactional character of civil law.

However, it is in the nature of the distinction between criminal and civil justice that it is an evolving and contingent one. This will be obvious from even a cursory examination and comparison of various domestic systems, many of which treat the distinction differently. For example the French mechanisms of victims constituting themselves as "parties civiles" means that a civil action can both trigger and piggy back on a criminal trial; punitive damages in the US show that reparations in a civil case can lead to a form of punishment. Moreover, the indigenous experience of the Western system may be that civil justice may be just as punitive as criminal justice, not to mention that indigenous legal traditions do not as neatly distinguish between the criminal and the civil.

In effect, the distinction between criminal and civil as well as administrative justice is constantly at risk of being eroded, as states seek to circumvent the particularly onerous protections they have set up within the confines of the criminal justice system. At times, punitive outcomes will be sought in civil cases (punitive damages); at others civilian penalties will complement (civil detention) or even substitute (civil forfeiture) criminal convictions. The net effect of such a phenomenon is to switch the emphasis from the accused's fault to the harm caused or the danger he poses. Discussions around these issues typically focus on questions of efficiency (is it more efficient to use civil rather than criminal remedies) and fairness (what of fundamental principles of justice?).

Canadian Forum on Civil Justice, BALANCING THE SCALE, Understanding Aboriginal Perspectives on Civil Justice, September 2006, Compiled by Mary Stratton

Most of the Aboriginal participants felt that there is no experiential distinction between the criminal and the civil systems of justice. Instead of leading to a fair resolution to a problem, involvement with the civil system is “part of the punishment.”

All these time frames and rules that don’t fit for our people. I mean I talked to someone today who - her children...were apprehended in [small town] while she’s here in [urbancentre]....They’ve been made Crown Wards; they make kids Crown Wards really fast now

Last year my ex trashed the place. He’s got anger problems. So I called the cops of course...and [then] I couldn’t believe it - [child services] started going to my kids’ schools, my work....I said are you here to help me? Or my husband with his anger?

Nothing.

dropped it....

I felt, “My God, are they checking me to see if I’m a good mother or not? That’s how I felt. More guilty.

Further Reading:

• Mann, Kenneth. “Punitive Civil Sanctions: The Middleground between Criminal and Civil Law.” The Yale Law Journal 101, no. 8 (1992): 1795–1873. doi:10.2307/796948.

• Ra, Edward P. “The Civil Confinement of Sexual Predators: A Delicate Balance.” John’s J. Legal Comment. 22 (2007): 335.

• King, Cynthia A. “Fighting the Devil We Don’t Know: Kansas v. Hendricks, a Case Study Exploring the Civilization of Criminal Punishment and Its Ineffectiveness in Preventing Child Sexual Abuse Note.” William and Mary Law Review 40 (1999 1998): 1427–70.

  • Fellmeth, Aaron Xavier. “Civil and Criminal Sanctions in the Constitution and Courts.” Georgetown Law Journal 94 (2006 2005): 1.

• Koziol, Helmut. “Punitive Damages - A European Perspective.” Louisiana Law Review 68 (2008 2007): 741–64.

• Heriot, Gail. “An Essay on the Civil-Criminal Distinction with Special Reference to Punitive Damages The Civil-Criminal Distinction.” Journal of Contemporary Legal Issues 7 (1996): 43–68.

  • Coffee, John C. “Paradigms lost: The blurring of the criminal and civil law models. And what can be done about it” (1992) 101:8 The Yale Law Journal 1875

  • Heriot, Gail. “Essay on the Civil-Criminal Distinction with Special Reference to Punitive Damages, An” (1996) 7 J Contem Legal Issues 43.

  • Jeffries Jr, John Calvin. “A comment on the constitutionality of punitive damages” (1986) Virginia Law Review 139.

• BLOOD FEUDS and the Payment of BLOOD MONEY in The Middle East. Brill Archive, 1963.

• Boone, Jon. “Samia Shahid’s Father Allegedly Hoped to Use Blood Money Laws to Get Away with Murder.” The Guardian, September 6, 2016.

  • Burns, Peter. “Private prosecutions in Canada: The law and a proposal for change” (1975) 21 McGill LJ 269.

    • Department of Justice, Federal Prosecution Service Deskbook (Public Prosecution Service of Canada, 2014), see section on Private prosecution

  • ACTION URGENTE, DOCUMENT PUBLIC Index AI :MDE 13/149/2007, 17 décembre 2007, AU 334/07 Exécution imminente, IRAN, RahelehZamani (f), 27 ans

• “Debtors’ Prison.” Wikipedia, the Free Encyclopedia, September 17, 2016.

• “Imprisonment for Debt (Upper Canada).” Wikipedia, the Free Encyclopedia, August 26, 2016.

• Richman, Sheldon. “Crime and Punishment in a Free Society.” The Future of Freedom Foundation, April 1, 2014.

• Lipson, Merek Evan. “Compounding Crimes: Time for Enforcement Note.” Hastings Law Journal 27 (1976 1975): 175–212.

• “Civil Penalties Come to Canada.” HazMat Management. Accessed September 21, 2016. .

  • Cheh, Mary M. “Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction.” Hastings LJ 42 (1990): 1325.

  • Fellmeth, Aaron Xavier. “Civil and Criminal Sanctions in the Constitution and Courts.” Georgetown Law Journal 94 (2006 2005): 1.

  • Mallor, Jane, and Barry Roberts. “Punitive Damages: Toward a Principled Approach.” Hastings Lj 31 (1979): 639.

  • Mann, Kenneth. “Punitive Civil Sanctions: The Middleground between Criminal and Civil Law.” Yale Law Journal, 1992, 1795–1873.

  • Morris, Clarence. “Punitive Damages in Tort Cases.” Harvard Law Review 44, no. 8 (1931): 1173–1209.

  • Robinson, Paul H. “The Criminal-Civil Distinction and the Utility of Desert.” BUL Rev. 76 (1996): 201.

  • Schwartz, Gary T. “Deterrence and Punishment in the Common Law of Punitive Damages: A Comment.” S. Cal. L. Rev. 56 (1982): 133.

  • Slobogin, Christopher. “The Civilization of the Criminal Law.” Vanderbilt Law Review 58 (2005): 121.

  • Steiker, Carol S. “Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide.” Annual Review of Criminal Procedure 26 (1997): 775.

  • Sant, Geoffrey. “Do the Crime, Pay Someone Else to Do the Time.” The Sydney Morning Herald, August 6, 2012. http://www.smh.com.au/world/do-the-crime-pay-someone-else-to-do-the-time-20120806-23puh.html.