Criminal Liability or Civil Liability?

I blogged below about what happens when the same conduct is both criminally and civilly actionable. But, my student also asked, how does the legal system decide that some conduct is a crime, some conduct is civilly actionable, and some is both?

1. Civil Liability Is for Compensating the Injured, Criminal Liability Is for Punishing the Morally Culpable. This is an oversimplification, for reasons I'll mention below, but it's a good place to start.

Thus, consider attempted murder -- someone shoots at me but his gun jams and, for good measure, I don't even learn until later that he tried to kill me. Attempted murder is a very serious crime, because people who try to kill others but fail are usually thought to be nearly as culpable as those who try to kill and succeed. (Some people view the two as equally culpable, but the legal system generally doesn't take that view.) But it's not a tort, because there's no injured party. Same for drunk driving, which can be punished even before the drunk driver causes an accident.

In some situations, for instance tries to knife at me and misses, he might be guilty of some tort that compensates me for the fear caused by the attack (e.g., assault or infliction of emotional distress). But in many cases, there's no civil liability at all for an attempt, because there's no injury to be compensated.

On the other hand, say you do blasting on your property, you're as careful as possible (and are therefore not negligent), but my neighboring property is still damaged. You're civilly liable to me, because this is a strict liability tort. But you're not criminally liable, because we generally don't punish people unless they're morally culpable, which usually (though not always) requires at least gross negligence.

2. Of course, as I said, this is an oversimplification. To begin with, civil liability sometimes involves punishment for the morally culpable, for instance in the typical punitive damages case, or when a tort requires some highly culpable mental state, such as knowledge that a harm would likely be inflicted. And the criminal law sometimes imposes strict liability, though that's pretty rare.

3. And beyond this, there are also lots of other practical factors that counsel in favor or against criminal or civil liability in some situations. Thus, for instance, most states have abandoned criminal libel -- either formally or in practice -- because of a concern that criminal libel would unduly deter constitutionally valuable true statements and opinions (and not just false statements of fact). Libel may still be morally culpable in many situations, and may lead to punitive damages liability as a result, but the criminal law generally doesn't punish it.

Likewise, the tort of intentional infliction of emotional distress is usually limited to behavior that a jury finds to be outrageous, which is by definition quite morally culpable. But there is no general crime of intentional infliction of emotional distress, partly because the definition of the offense is probably too vague for the criminal law.

Conversely, some relatively low-level harmful behavior is not highly morally culpable, but civil liability probably won't do a good job of stopping it -- perhaps because the behavior is committed by people who don't have enough money to make a lawsuit worth a plaintiff's time, or because the harm is spread over many people and none of the potential plaintiffs can sensibly afford to sue. Consider, for instance, graffiti, being drunk and disorderly when the disorder consists just of shouting, and the like.

In such situations, the behavior might be made criminal chiefly because only the criminal system can do much about it. Civil liability may theoretically be available in those cases, but practically it isn't used.

4. Finally, let's step back a bit: This is a good example of a common legal phenomenon -- there is an important theoretical distinction between two kinds of legal approaches (here, compensation for the injured vs. punishment for the culpable), but the distinction explains only part of the story. It's important both to understand the big theoretical distinction, and understand that it's not the only principle in play.

Related Posts (on one page):

  1. Criminal Liability or Civil Liability?
  2. Criminal Liability and Civil Liability:
Crackmonkeyjr (www):
Your fourth point touches on an important point, particularly in this area. There are certainly logical theories that run through the law, but not all of the law is logically consistent, particularly positive law. There may be a logically consistent reason for a particular statute, but really statutes get passed because a majority of the legislature voted for it and the executive signed it.

A great example of this is that their is a tax credit for the blind, but not for the deaf. You can talk about whether being blind is more of a disability than being deaf, but the real reason why this exists is because the blind lobby was more able to convince Congress to give them a tax break than the deaf lobby.

When you are dealing with criminal law, this becomes even more of an issue. At least in New York, there are no common law crimes. If something is a crime, it is because at some point, the legislature passed a law making it a crime. The legislature may or may not have been consistent, but even if two acts are almost identical, under most circumstances, there is no requirement that the legislature either criminalize both or neither of the acts.
9.4.2008 3:38pm
Dumbo lawyer:
I just wonder who vetted you Eugene, before you were hired?
Seems, like Palin, other issues prevailed to hire you.
9.4.2008 3:40pm
I don't know any thing about others know nothing about modern art (know what I like...haha). I've always thought that criminal law was an action against the state, against the state's rules. That civil law was a crime against a person. Thus, the whole "swearing out a complaint" makes little sense.
9.4.2008 3:43pm
Eugene Volokh (www):
Dumbo lawyer: I'm puzzled -- I was hired because I was a woman? A fundamentalist? Good-looking? Needed to balance the ticket?
9.4.2008 3:44pm
Bill Poser (mail) (www):

I've always thought that criminal law was an action against the state, against the state's rules. That civil law was a crime against a person.

That is true historically but there has been a long evolution away from it. In many societies in earlier times crimes that were not considered to implicate the state were treated civilly. For example, murder was only a crime against the king or his representatives. If you killed an ordinary person, his or her family could claim blood-money.

Many legal systems retain traces of this. In Islamic law, for example, murder is prosecuted by the state, but a murderer may be pardoned if the family of the victim agrees to accept blood money instead. In England there is still such a thing as private prosecution, where certain people with standing (some kind of family but I don't know the precise rules) may initiate a criminal prosecution if the Crown declines to do so. This reflects the fact that many such crimes were once private matters.
9.4.2008 4:09pm
Sua Tremendita (mail):
Murray Rothbard's take makes more sense.

The distinction between tort and criminal law is a false one. Who exactly benefits when the inquiry shifts from the injured to the 'moral' aspect of the act? The State.
9.4.2008 4:57pm
Who exactly benefits when the inquiry shifts from the injured to the 'moral' aspect of the act?
So it's OK to murder an orphan, because there's no one left to sue you?
9.4.2008 5:07pm
TruePath (mail) (www):
So I'm kinda baffled about in what sense this theoretical distinction is really true. I mean there are several different ways I could interpret this but they lead to different conclusions.

1) It's merely a useful mnemonic device for predicting what sort of things are criminal and which ones are civil. Sure it's not perfect but it's a lot easier to remember the exceptions to a generally valid rule than each case individually.

However, on explanation 1 it's not genuienly important to know/understand the theoretical distinction. It's just a good way of instilling memory of the law but other than wasting time just memorizing what's criminal and what's civil would be just as good.

2) This theoretical distinction represents a normative claim about how the law SHOULD work. In other words you believe that we should strive to minimize the pragmatic exceptions.

In this case it's unclear why it's important to understand this distinction unless you happen to agree with your normative position. If, for instance, you are someone like me who thinks we should always take the pragmatically best choice determined not by this sort of theory but by experiemnt this theoretical distinction seems irrelevant.

3) This theoretical distinction is true simply in the sense that other people believe/act as if it were true. It happens to be a cultural/social fact that when making arguments in court over and above the specific case law the court/jury has a tendency to look for damage in the liability case and moral culpability in the criminal case.

My guess is that 3 is the right answer but I'm curious about your opinion.
9.4.2008 5:23pm
Duffy Pratt (mail):
When infractions are defined by statutes, politicians make the distinction between what is Civil and what is Criminal. When the infractions arise from the common law, the same distinction gets made by judges. And you wonder why the line might not be so clear?
9.4.2008 5:24pm
I remember an XO asking me if I was going to "press charges" against one of his crew that had stolen something of mine (and had been caught by Shore Patrol and I had gotten item back). I just looked at the guy and said, it doesn't have anything to do with me. That's the decision of the authorities. If he violated the UCMJ, it's the authorities decision on how to handle it. Not for me to make them prosecute when they don't want to, and not the reverse if I wanted them to go easy. And I'm just a witness (of loss of the item). He sorta looked at me funny, but let me go at that. Not sure what happened to the guy. I doubt it went to Court Martial or even NJP as I was never asked any questions by an investigator (although they did have my statement of the loss to SP). But there's always NJP or even ways to (de facto) discipline without using NJP.
9.4.2008 5:26pm
kiniyakki (mail):
A topic related to this is what happens when a person pleads no contest to a charge - not admitting to the conduct but accepting the sanction. What if the person was then sued based upon the same act? In Alaska (my state) I think I know the answer (it doesn't matter, the judge adjudicating guilt is what matters, regardless of the plea), but it is interesting to think about.
9.4.2008 5:27pm
The most important thing to keep in mind is that the penalties assessed in both the criminal and civil cases violate both common sense and human rights. For example:

1. If you kill a pregnant woman entering an abortion clinic, you will get two death sentences.
2. If you died in the World Trade Center collapse, the damages you are awarded depend on your salary and breeding status.
3. If your break a Mercedes' turn-signal lens by running into it with your Beetle, you owe the owner $500 for a replacement. If he does the same thing to you, he owes $20. Insurance and law punish the poor by the idiotic transfer of wealth.

These are things they never teach you in law school. Why make waves?
9.4.2008 5:50pm
Chris 24601 (mail) (www):
FWIW, fans of analogies between criminal law and the law of punitive damages might be interested in this article of mine on punishing corporations in the two fields, or this shorter one.
9.4.2008 6:02pm
TruePath (mail) (www):

Actually those are all fairly reasonable results, especially if you read the post.

As far as both 2 and 3 go the point of civil damages is to compensate the victim for the harm you caused.

I mean suppose I hang out with my rich friend and he accidentally smashes up my civic with his Ferrari. Now maybe he's a real nice guy and immediately runs out to the store and buys me a brand new civic. Seems to me he did the right thing. It would be stupid to say he needed to give me some extra cash in addition to my new car just because he banged up his Ferrari in the process.

3 is the same idea. It seems counterintuitive because the primary harm of death is not monetary but the idea with wrongful death is largely to compensate the individuals for the loss of income resulting from the person's death.

1 (assuming it is even true) is a bit different. I agree this is a bad law but it partially stems from our chivalric intuitions that tell us that killing the weak/helpless/unarmed individuals is worse and a pregnant woman is a paradigm case of that.

However, if I had to guess I would say that the primary explanation for #1 is that many women feel a degree of pain and loss as a result of forcible abortion that is much closer to that of the murder of their child than that of mere assault. Since the case you describe is so rare and so hard to differentiate from the other situation (you can't make the sentence enhancement depend on whether the woman wants to keep the baby) pragmatics dictate that result.

I still think we should create a new crime for it and avoid the difficulties of calling it murder.
9.4.2008 6:12pm
(fetus) It's wave particle duality. It's a person, no it's not a person. It's a person, no it's not a person.

Reminds me of a buddy of mine who would ride his bike around town on sidewalks and crosswalks, etc. He would call out (illegally, but funnily): I'm a car! I'm a pedestrian! (whichever helped him move more).
9.4.2008 6:37pm

Here's where your weakness in math--almost a universal requirement for lawyering (especially judging)--shows through. When I in my Beetle hit your Ferrari, you are partly to blame for subjecting such a luxury car to damage on public roads. The "thin skull" doctrine is an ass, since society would never agree to such a rule if if we all voted on the basis of ex post ante, the true test of its fairness.

The same thing holds for a woman carrying a fetus and for rich breeders who work in skyscrapers. Fairness dictates that they personally assume all risk that exceeds the average, else we need to put all white breeding bond traders underground and prohibit pregnant women from leaving the house until they deliver.

I suggest you enlighten yourself by reading some Richard Epstein, et. al.
9.4.2008 7:42pm
Eugene Volokh (www):
Malthus: I know quite a bit about math, and (1) I agree with TruePath and (2) I'm pretty sure that the question isn't about math but about moral theory (what you say "fairness dictates"). Say that because of your negligence, you damage my car to the tune of $50,000; should you compensate me the full $50,000, or should this be discounted because I exposed my valuable property to risk (and thus "assume all risk that exceeds the average")? I think the answer is full compensation, but the question isn't a math question.

Incidentally, even if "fairness dictates that [potential injured parties] personally assume all risk that exceeds the average" -- something that strikes me as far from proven in your posts -- there would still be a difference in compensation depending on the car you drive: If your car is a 10-year-old car that is now worth $3000, you'd only get $3000 if it's totaled; if it's an average car that is now worth $10,000, you'd get the $10,000. You just wouldn't pay $30,000 to those whose car is worth $30,000.

Finally, any chance you might be a bit calmer and more polite in your comments?
9.5.2008 4:37am