Reassessing the Criminal-Civil Divide
Jenny Roberts, American University
This article will revisit the
dividing line the Supreme Court has set between civil and criminal penalties,
in light of the current reality of widespread, easy availability of criminal
and related records and the many ways in which a variety of actors use that data.
The categorization of a consequence as civil or criminal is significant, as it
effectively determines whether that consequence can be applied retroactively,
whether there is a right to counsel with respect to that consequence, and
whether a variety of other constitutional rights apply.
In 2002 in Smith v. Doe,
the Court held that Alaska’s sex offender registration and community
notification requirements were “a civil, nonpunitive regime” and denied the
petitioner’s ex post facto challenge to the state law. In 2017, a federal
district court judge found Colorado’s Sex Offender Registration Act, although
not punitive in intent, was punitive in effect. Noting that “Justice Kennedy’s
words [in Smith] ring hollow” given current realities, the court
stated that the Court “did not foresee the development of private, commercial
websites exploiting the information made available to them. . . The justices
did not foresee the ubiquitous influence of social media.” This article will
call for reassessing the civil-criminal divide in light of such recent
developments. It will explore the constitutional, institutional, and practical
consequences of such a reassessment, including the complexity of drawing a line
as current data realities continue to evolve.
A Qualitative Turn: How the Subjective Experience of Punishment Should
Change Sentencing
Eve Hanan, University of Nevada Las Vegas
Sentencing decisions calculate the severity of punishment
numerically, in terms of months or years of imprisonment. They rarely take into
consideration the qualitative experience of imprisonment. A purely quantitative
view of punishment, however, provides insufficient depth of information on
which to base sentencing law and practice. A small coterie of scholars argue
that an individual’s subjective experience of punishment should be relevant to
weighing the punishment’s severity. Their argument is a starting point, but it
dramatically understates the relevance of more general, qualitative findings on
the nature of imprisonment. In this article, I make the broader claim that
qualitative data on punishment should serve to empirically inform our normative
commitments in sentencing law and practice. In short, it should matter what
prison is like.
Outside of the courtroom, research on the qualitative
experience of punishment has grown increasingly deep and expansive, ranging
from journalistic and humanistic accounts of life in prison to rigorous social
science research within prisons. In this article, I analyze how data derived
from these sources are relevant to three areas of the criminal legal system. First,
research on the qualitative experience of imprisonment should be relevant to
lawmakers who set punishments for crimes, reform criminal laws to offer
rehabilitative alternatives, and pass laws that define and fund prison systems.
Second, the research should be relevant to sentencing decisions made by
prosecutors and judges in trial courts. Third, the research should be relevant
to appe