The Important Line between Civil and Criminal Is Being Breached
by Alan M. Dershowitz • January 24, 2023 at 5:00 am
There are two major reasons why criminal liability has been extended to cover negligent behavior. The first is evidentiary: it is often difficult or impossible to prove a specific intent to commit a crime, so the law takes a shortcut, substituting negligence, which is far easier to prove.
The second reason is to put the burden of preventing harms on the persons most able to do so.
Another consequence [of this expanding criminalization of what used to be civil violations], which we are currently experiencing in the political world, is the weaponization of the criminal justice system for partisan purposes.
There are two fundamental mechanisms of justice for wrongs committed. The first is civil, in which the wrong is compensated economically — by the payment of money. The second is criminal, in which the wrongdoer is punished — by imprisonment, probation or fine.
Our constitution recognizes this historic distinction by guaranteeing different rights in civil and criminal cases. The Bill of Rights provides that "in all criminal prosecutions," a plethora of important procedural protections must be accorded the defendant. These include a "speedy and public trial by an impartial jury", "the assistance of counsel", the ability to confront adverse witnesses and call favorable ones, prohibitions against compelled self-incrimination and double jeopardy, reasonable bail and no "cruel and unusual punishment."
In civil cases, on the other hand, there is little more than trial by jury and basic due process.
