NCJ Number
74980
Date Published
1980
Length
25 pages
Annotation
This paper examines the dichotomy of criminal and civil law expressed by the retributive mechanism of the former and the restitution basis of the latter, and by the different goals serviced by the two systems.
Abstract
In criminal law, penalties are intended to punish the violator and deter the potential violator. In civil law, the coercive power of the State is behind the requirement to pay for injuries inflicted or contractual obligations unfulfilled. An examination of part of an urban criminal justice system illustrates the use of the more coercive system to achieve essentially civil results in commercial controversies. The fraud and consumer complaint (FCCD), a specialized section of a county prosecutor's office in Illinois, has its statutes written in a criminal format, but the operational goal of this office is not deterrence, but readjustment or repayment. Recognition of the limited ability of criminal justice to deal effectively with ongoing disputes is reflected in the growing effort to divert many technically criminal offenses from the adversary process of the criminal courts to legal structures and operating procedures of the FCCD type. Like the FCCD, these programs retain the threat of criminal prosecution as a tool in effecting voluntary settlements. Thus, the nature of a legal disposition is insufficient as an indicator of the role of the coercive power of the State. Instead, an examination of the actual operating procedures is necessary to understand the interaction between repressive and restitutive sanctions that occurs in practice. Tables, 14 notes, and 39 references are appended. For related articles, see NCJ 74975.